164 Mass. 591 | Mass. | 1895
We discover no error in the instructions given, or in the refusals to instruct as requested. It plainly was a question of fact for the jury whether the depression in the sidewalk where Mrs. Cullinan fell was caused by the laying of the sewer and water pipe, or by teaming over the sidewalk. The plaintiff was bound to satisfy them that it was caused by the teaming, and also that it happened within the time covered by the license, and the court so instructed the jury. The plaintiff was not required to show just when or how the teaming produced the hole in the sidewalk. It was sufficient if it offered evidence of facts and circumstances from which it fairly might be inferred that that caused it at some time during the continuance of the license. The jury was not bound to believe all that every witness said. It was competent for the jury to compare the testimony of different witnesses, and to accept a part and reject a part, and if the verdict was or might have been reached in that manner, it must stand, if there was any evidence beyond a scintilla to support it.
We think that there clearly was such evidence. The foundation of the church had been put in before the license was granted; but there was testimony warranting the conclusion that the sidewalk was in good condition down to the time when the erection of the walls began. One ICeough, a witness for the defendant, so testified. It did not appear very clearly when that was, but the jury, we think, reasonably might have found it to have been in the latter part of May or in the first part of June, 1889. There was also testimony that substantially all the wall was put up in 1889, and that the towers were finished and the remaining stone put. up in the following spring; that during the construction of the church the sidewalk was used for the storage of stone and brick; and that teams were driven across it with brick and stone, and, as one witness said, “ broke it all up.” There was also the fact, which one of the defend
It was competent for the jury to find on this testimony that the depression in the sidewalk was caused by the teaming over it during the time covered by the license; though they might also have found, if they had seen fit, that it was due to the laying of the sewer and water pipe.
The fact that no written agreement was given to the city by the Sacred Heart Society, as required by the ordinance, cannot avoid the agreement entered into by the defendant’s testator, unless it was a condition precedent or subsequent that he should not be liable if such an agreement was not furnished by the Soci.ety to the city. No such condition is expressed or implied in the agreement, which is an absolute undertaking on his part that the society shall do certain things; amongst others, “ indemnify the city from all loss, cost, or expense that it may suffer by reason of the occupancy described in said license.” The society has not done that, and consequently the defendant is liable.
The plaintiff plainly was under no obligation to attempt to collect of the society the amount which it had been forced to pay in consequence of the defect in the sidewalk. The agreement was an original undertaking, and was not affected or impaired by the fact that the defendant’s testator might have no remedy over against the society. If he had wished to provide for that contingency, something covering it should have been inserted in the agreement. Bishop v. Eaton, 161 Mass. 496, 501.
The jury properly may have understood the testimony of Strong, Blake, and Allis as referring to the time when the erection of the walls began, and to the subsequent use of the sidewalk. Its tendency was to show that the sidewalk was broken up and made defective by the society, and on that ground it was admissible.
Exceptions overruled.
