Connelly v. City of Boston

206 Mass. 4 | Mass. | 1910

Knowlton, C. J.

This is an action to recover for a personal injury caused by a defect in a public street. Between half past ten and eleven o’clock in the evening the plaintiff left the Park Theatre, and as she was walking near the railway track on Washington Street, in an attempt to take a street car, the pavement suddenly gave way and one of her feet went down to a considerable depth below the surface of the street. This condition of the street was a serious defect. It had been raining hard through the day and evening, and the pavement in some places was a little muddy as well as wet. The jury well might have found that the plaintiff was in the exercise of due care, for she had no reason to anticipate danger from a defect in the middle of the street.

The evidence tended to show that the cause of the defect was the prosecution of the work of constructing a tunnel under Washington Street, which was done by the transit commission under the St. 1902, c. 534. This was a great public work, carried on by a board of public officers, acting independently under direct legislative authority. The city might assume that the members of this commission and the contractors and employees engaged in the work would use due care to avoid exposing travellers to injury. The city was not liable directly for the negligence of any of these persons. But so long as the street was left open for public use the city was under the ordinary statutory liability for a failure to keep it safe and convenient for travellers.

In order to recover the plaintiff must prove either that the city had reasonable notice of the defect, or that it might have had such notice by the exercise of proper care and diligence. There is no evidence that the city knew of the condition that rendered this place unsafe before the accident, for the pavement had not then fallen. The important and difficult question in the case is whether there was evidence from which a jury could have found that the city might have known of it by the exercise of proper care and diligence.

On this point the evidence was meagre. There was testimony that, after the accident, the street at that point was all caved in for a distance of a foot and a half to two or three feet each way. One witness testified as to the conditions near that point before the accident: “ The pavings there, it seemed that some part of them were put together tight and others looked as though the ground underneath the pavements had been loose and it sunk in. About every few feet there were humps.” The known fact that excavation was going on underneath called for special vigilance on the part of the representatives of the city to ascertain whether the irregularities in the surface of the pavement were such as would expose travellers to danger. We are of opinion that there was evidence on this part of the case proper for the consideration of the jury.

Judgment for the plaintiff.