Brummett v. City of Boston

179 Mass. 26 | Mass. | 1901

Holmes, C. J.

This is an action for personal injuries caused by the sudden falling in of a sidewalk upon which the plaintiff was walking. The question is whether there was any evidence of notice to the city of its dangerous condition. At the trial the judge directed a verdict for the defendant, and reported the case.

There had been some digging and blasting near by for a post for the Elevated Railway. A trolley wire pole had been moved to near the place. An electric light pole close to the spot had been taken up a month before and the hole filled in, and the same thing had been done later with a hydrant. But whether the soil was disturbed at the precise spot did not appear. Who did the work was not proved except by inference, nor did it appear that the work was done improperly, or, if it was, that the city had notice of the fact. In Bingham v. Boston, 161 Mass. 3, there was such notice. It had been raining hard, and if the rain coupled with the recent disturbances of the soil caused the accident, the city cannot be held.

It would seem more probable that the immediate and active cause was the escape of water, presumably from a water pipe of the city, which was noticed and complained of three or four days before. The water came from the street into the cellar adjoining the sidewalk where the plaintiff fell and, very likely, undermined it. Upon receipt of the notice men from the water department took up the pavement in front of the sidewalk and did some work. The flow of the water then stopped. The strongest argument for the plaintiff is that the city, having notice through its water department of the course of the water, fairly might have been found negligent in not discovering the supposed effect of the water between the place it repaired and the building.

But apart from other questions, Stoddard v. Winchester, 157 Mass. 567, 574, this is pure conjecture. If it were permissible to guess, it is as likely that the earth looked safe at the point where the watch department stopped work as that the person in charge went away leaving a manifestly unsafe place. There is an even chance that the water would not have done any harm but for negligent filling done by a third person and unknown to the city. Even assuming that the probabilities are that the escape of water from a pipe had undermined the sidewalk, the rest of the case is too uncertain to warrant a finding that the .defendant was in fault.

Judgment for defendant.