Burt v. City of Boston
1877 Mass. LEXIS 102
Mass.
1877
Check Treatment
Morton, J.

The statute provides that highways shall be kept in repair at the expense of the town or city in which they *226are situated, so that they shall be safe and convenient for travellers, and that any person, who receives injury through a defect or want of repair in a highway, may recover damages therefor of the town or city by law obliged to repair the same, if such town or city had reasonable notice of the defect, or the defect had existed for twenty-four hours previously to the occurrence of the injury. Gen. Sts. c. 44, §§ 1, 22. There is no provision of the statute, which limits the liability of towns and cities to open and visible defects, as contended by the defendant, but it extends to all defects.

Ordinarily, the question whether a defect exists at the time of the injury and whether it has existed for twenty-four hours previously, are questions of fact exclusively for the jury. In the case at bar, both these questions were for the jury to decide.

The plaintiff was injured by the breaking of a flagstone which formed part of the sidewalk in front of the house in which he lived, and which covered the coal cellar or vault connected with the house. There was evidence tending to show the size of the flagstone and the manner in which it was supported by walls underneath; that it had been in use for at least six years; that the upper part was somewhat hollowed out in places; that for six months or more there had been three or more cracks in it, visible on the upper surface and extending from the hole in the centre to the outer edges; that it broke by the plaintiff’s weight upon it along the cracks and in other places; that the edges of the pieces, where the cracks had been, were black and dirty and looked as if the cracks were old; that the stone on the under side was rotten and easily flaked off with a trowel; and that in many places the mortar had fallen out from the walls supporting the stone, and the walls had-become loose and insecure. It is impossible to decide upon this evidence, as matter of law, whether the sidewalk had or had not been in a dangerous condition for twenty-four hours previously to the accident. The jury alone are entitled to decide whether the fair inference from all the evidence is that the sidewalk was at the time of the accident, and had been for twenty-four hours, in a dangerous condition. We are of opinion that this question should have been submitted to them.

The defendant contends that the plaintiff cannot recover, because he was lessee of a part of the house to which the coal cel*227lar belonged. The owner or lessee of a house, whose duty it is to keep the sidewalk in repair, is liable over to the city if it is compelled to pay damages for an injury caused by a defect in such sidewalk. Boston v. Worthington, 10 Gray, 496. And it is clear that such owner or lessee could not maintain an action against the city for an injury to him caused by a defect in such sidewalk. But the plaintiff was not such owner or lessee. He was lessee of two rooms in the house and had no right in or control over the coal cellar. He was under no duty or obligation to keep the sidewalk in repair, and was not liable to any one for an injury caused by a defect in it. Kirby v. Boylston Market Association, 14 Gray, 249. Shipley v. Fifty Associates, 106 Mass. 194. Leonard v. Storer, 115 Mass. 86. Larue v. Farren Hotel Co. 116 Mass. 67. The principle running through all the cases is, that the party whose negligence causes the injury, whether he be lessor or lessee, is liable for the injury. If it be assumed that Mrs. Knight, the plaintiff’s lessor, was responsible for the condition of the sidewalk, yet his relation to her was not such that her negligence could be imputed to him or defeat his right to recover of the city.

The case of Bartlett v. Boston Gas Light Co. 117 Mass. 533, relied upon by the defendant, is entirely different from the case at bar. There it was held that the lessor was affected by the negligence of his lessee, and could not recover if such negligence caused an explosion of gas which had accumulated in the house by the negligence of the defendant. But it was upon the ground that the lessee was intrusted by the owner with the charge and control of the property, and was therefore the one whom the owner had put in his place, with the duty of using reasonable care for the protection of the property. In the case at bar, the plaintiff never had any duty as to the sidewalk, and of course never transferred any such duty to his lessor. He is in no way responsible for her negligence in regard to other parts of the house not leased by him, and his right to recover of the city is not affected by such negligence.

We do not understand that there is any question made upon the point that it was for the jury to determine whether the plain* tiff was in other respects in the exercise of due care.

Gase to stand for trial.