219 Mass. 302 | Mass. | 1914
It is impossible to say that the evidence would not have warranted a finding that the plaintiff’s intestate was in the exercise of due care at the time of the accident. He was walking along the sidewalk in the usual way. It was a dark and rainy night. It does not appear that he knew of the existence of the alleged defect, and there was nothing but the darkness to call for any particular vigilance on his part. The effect of this circumstance was for the jury. That he must have been near the curbstone, or that his foot may have been over it when his toe hit the edge of the protruding stone, could not have been decisive against him. There was positive evidence that he was not under the influence of liquor. He had a right to rely somewhat upon an expectation that the sidewalk would be free from any dangerous defects. The case comes under the principles laid down in Woods v. Boston, 121 Mass. 337; Flynn v. Watertown, 173 Mass. 108; Franklin v. Worcester, 204 Mass. 22; Connelly v. Boston, 206 Mass. 4; O’Neil v. Chelsea, 208 Mass. 307.
The defendant has not contended that there was not evidence of an actionable defect, of which the defendant might have had sufficient notice by the exercise of reasonable care and diligence. See Sawyer v. Newburyport, 157 Mass. 430; Lamb v. Worcester, 177 Mass. 82; Franklin v. Worcester, 204 Mass. 22.
The notice to the defendant erroneously stated that the injury occurred on the westerly sidewalk of the street. It in fact occurred on the easterly sidewalk. But the rest of the notice was accurate and sufficient. The place was identified by the reference
The case should have been submitted to the jury; and the entry must be
Exceptions sustained.
