200 Mass. 101 | Mass. | 1908
The plaintiff, in the evening of September 21, 1905, struck her foot against a rope stretched along a street in the defendant town and was thrown down and injured. The rope Was attached to a building which was being moved through the street with the permission of the selectmen, granted in accordance with R. L. c. 52, § 13. While the building was being moved the rope, which was attached at one end to a capstan, was itself in motion, under the care of the workmen. As the work went on, there was interference by the building with the system of wires for electrical lighting, and the building was stopped until the wires could be cut by the employees of the lighting company, and the rope was left taut in a line about eighteen inches above the surface of the street. This action was brought on the ground that the defendant was liable for a defect in the street.
At the close of the plaintiff’s evidence the judge ruled as follows : “ Your evidence shows that the rope was stationary and not in use at 8: 30 p. M. Your plaintiff says that she left the church between 8: 30 and a quarter to nine, and took her perhaps five minutes to walk there. No evidence has been introduced to show that any of the town officials had notice, and therefore the question arises whether fifteen or twenty minutes at the out
We assume in favor of the plaintiff that the rope, in its position at the time of the accident, constituted a defect within the meaning of the statute. It was not then in use and it ought not to have been left stretched a foot and a half above the ground in the darkness of the evening. On the other hand, the use of the street for the removal of the building, with written permission from the selectmen, was lawful. It is to be inferred on this record that the permission was properly granted in accordance with the provisions of the statute. We must assume that, in giving the permission, terms had been imposed such as the public safety required. The existence of the building in the street would necessarily cause some obstruction to travel, and the capstan and ropes, such as are ordinarily and rightly used in moving a building, would interfere with ordinary travel at the places where they were set up, while they were in use in drawing forward the building. In a less degree, every vehicle or team moving on a street interferes for the time with the use of that part of the street which it occupies. It is the duty of every person in charge of such a vehicle or team, as well as of every person moving a building in a street, to take proper measures for the protection of other travellers, so far as his occupation of the street might expose them to danger. Taking precautions of this kind is a part of the terms that properly may be prescribed by selectmen under the statute above referred to.
There is nothing in this ease to show that there was any failure to take proper precautions while the work was going on, or that the .rope by which the building was drawn, while it was in motion in charge of the workmen, was a defect in the way.
The only question is whether, after the work stopped and the rope was left there unnecessarily, such a length of time elapsed that the authorities of the town, in the exercise of reasonable care, should have had notice of its position and should have removed it. The judge in his ruling referred to this time as “ fifteen or twenty minutes at the outside.” This was in accord
In Stoddard v. Winchester, 154 Mass. 149, there was a condition of the street that was likely to cause a defect in a time of storm, and the defect had been in existence about an hour before the accident. It was not contended that there was evidence of notice to the town of the existence of the defect, and it was held that there was no liability. See also Whitney v. Lowell, 151 Mass. 212, and Stanton v. Salem, 145 Mass. 476. In Donaldson v. Boston, 16 Gray, 508, 511, the rule in this class of cases is stated as follows: “ The facts must be such as to lead to the inference that the proper officers of the town, whose duty it is to attend to municipal affairs, did actually know of the exist
Judgment on the verdict.