143 Mass. 296 | Mass. | 1887
The city of Lowell was responsible for the defect in its highway only if it had reasonable notice thereof, or, by the exercise of reasonable care and diligence on its part, might have had such notice. Pub. Sts. g. 52, § 18. Such notice may be given to its officials, and the reasonable care and diligence which must be exercised are to be exercised by them. The book which was admitted in evidence was kept in the office of the city messenger, in the city government building, and had been thus kept from 1871 until after the time of the injury, which was of recent date. The printed headings on its pages indicated that it was kept for the purpose of entering complaints as to the condition of the streets, sidewalks, &c., and of recording the time when such complaints were attended to. It was in evidence that the superintendent of streets had, in consequence of similar notices, repaired defects complained of. The object with which the book was kept apparently was that the city should receive notice of defects. Upon this book a policeman of the defendant city had entered a notice of the defective condition of the sidewalk on the day before the occurrence of the plaintiff’s injury, and it was properly admitted in evidence upon the question of notice. Whether the defect was the same, and the place of the injury the same, as that pointed to by the entry recorded, were to be determined as facts. It does not appear, as the defendant contends, that the book was admitted as evidence of the condition of the way at the time it was made. The actual condition of the way was proved by other evidence, and no further weight
The defendant requested the court to rule “ that the origin of the ice ” by which the defect was occasioned “ was not material on the question whether the ice constituted a defect; ” but as the court, the case being tried without a jury, found as a fact “that the ice on which the plaintiff fell was a defect, without reference to its origin,” that is, independently of the manner in which it was occasioned, this request of the defendant was immaterial. We do not intend to intimate that, even if material, the request should have been granted, especially in view of the St. of 1877, g. 234, § 2, (Pub. Sts. o. 52, § 18,) which renders a town or city liable only for an injury or damage through a defect “ which might have been remedied, or which damage or injury might have been prevented by reasonable care and diligence.” Billings v. Worcester, 102 Mass. 329. Fitzgerald v. Woburn, 109 Mass. 204. Rooney v. Randolph, 128 Mass. 580. Hayes v. Cambridge, 136 Mass. 402. Post v. Boston, 141 Mass. 189. Olson v. Worcester, 142 Mass. 536.
Exceptions overruled.