310 Mass. 478 | Mass. | 1941
These are two actions of tort, tried together. The plaintiff in the first action, a minor, seeks to recover damages for personal injuries, and the plaintiff in the second, his father, to recover for consequential damages. The jury returned a verdict for the plaintiff in each action, but, under leave reserved and subject to the plaintiffs’ exceptions, verdicts were entered for the defendant. It is apparent that the declarations are drawn under G. L. (Ter. Ed.) c. 84, § 15, to recover damages for a defect in a public way.
An ordinance of the defendant (G. L. [Ter. Ed.] c. 4, § 7, Thirty-fourth; c. 40, § 21) provides, among other things, that the mayor, subject to the approval of the city council, shall appoint annually a superintendent of streets and sewers who shall have all the powers, perform the duties and be subject to the liabilities and penalties of surveyors of highways and road commissioners. Among others, his duties, therein defined, are that he shall keep the streets clean and in good order and shall remove all nuisances, obstructions and encroachments therein or,give notice thereof to the city marshal.
The leaves were raked and burned by an employee of the street department upon the order of the superintendent of streets. The defendant does not contend that the minor plaintiff was contributorily negligent, but it does contend that whatever was doné in the case at bar was done by the superintendent of streets who had the powers and duties of a highway surveyor (see G. L. [Ter. Ed.] c. 41, §§ 62, 64, 68) and for whose conduct it is not responsible. However, it is of no consequence whether the defendant is responsible for any negligence of the superintendent of
The question next arises whether the city had, or might have had, reasonable notice of the defect. The work in question was being done under the direction of the superintendent of streets, and this direction included the burning of the piles of leaves. It could have been found that he had notice of the defect that was created and this was sufficient notice to the defendant. G. L. (Ter. Ed.) c. 84, § 15. Donaldson v. Boston, 16 Gray, 508. Harriman v. Boston, 114 Mass. 241, 245. Hinckley v. Somerset, 145 Mass. 326, 337. Mason v. Winthrop, 196 Mass. 18, 20. Kelleher v. Newburyport, 227 Mass. 462, 465. See Lobdell v. New Bedford, 1 Mass. 153.
Upon this aspect of the case it remains to be determined whether it could have been found that the injury to the minor plaintiff might have been prevented, or the defect might have been remedied by reasonable care and diligence on the part of the city. It is to be observed that this is not an action to recover for negligence at common law, and apart from the statute. On the contrary, it is an action to recover because of an alleged defect in the highway. We are not concerned with anything else. See Pratt v. Weymouth, 147 Mass. 245, 253, 254. We are of opinion that the jury could have found that the injuries might have been prevented or the defect remedied by reasonable care and diligence on the part of the defendant. The defendant must be held to have had notice not only of the creation, but of the existence, of the defect.. It was for the jury to say, in the circumstances, whether on the day in question the leaves should have been left with the embers smouldering so that the wind might blow them upon the clothing of a passerby. The very act of creating
At the beginning of the trial the minor plaintiff moved to increase the ad damnum of his writ. This motion was denied, subject to his exception. In the course of the trial the plaintiff in each case filed a motion to amend his declaration by adding a count for negligence at common law. These motions were denied, subject to the plaintiffs’ exceptions. After verdict, the minor plaintiff filed a motion for new trial, alleging as the ground that the damages awarded were inadequate. To the denial of this motion, he excepted. After the jury had retired for their deliberation, counsel for the minor plaintiff called the trial judge’s attention to the fact that the jury had taken with them the writ in which the ad damnum was-set at $4,000 and stated that he desired to take an exception to this. Counsel at that time "urged” that the judge, upon the coming in of the jury, if the verdict was $4,000 or under, interrogate them in order to ascertain whether or not the ad damnum in the writ influenced them in any way in arriving at the amount of their verdict. This request was denied subject to the plaintiff’s exception. The judge in his charge to the jury did not instruct them that the damages that the minor plaintiff was entitled to recover under G. L. (Ter. Ed.) c. 84, § 15, were limited to $4,000.
We are of opinion that there was no error as to these several matters. Whether the motions to increase the ad damnum should have been allowed, was a matter within the sound judicial discretion of the trial judge. Cutter v. Arlington Construction Co. 268 Mass. 88, 92. The rule is the same in relation to the motions to amend the declarations. Urban v. Central Massachusetts Electric Co. 301 Mass. 519, 524. And so it is as to the motion for a new trial. Kinnear v. General Mills, Inc. 308 Mass. 344, 348. It does not appear that the minor plaintiff properly saved any exception to "allowing the jury to take the writ.” If
The plaintiff in the second action conceded at the argument that he has no right to recover for consequential damages under the highway statute, so called. There was no error in his case and his exceptions are overruled. It follows from what has been said, that it was error to allow the motion for entry of verdict for the defendant on leave reserved in the case of the minor plaintiff, that the exceptions, in this case, must be sustained, and that judgment is to be entered for the plaintiff on the verdict.
So ordered.