Donaldson v. City of Boston

82 Mass. 508 | Mass. | 1860

Bigelow, C. J.

Evidence that the furnace had been in the same place on the sidewalk of the street, upon the day previous to the accident, was irrelevant and immaterial to the issue. If it occasioned a defect or obstruction, its removal at nightfall abated the nuisance, and the defendants were then in no-default in the performance of their duty. The street was safe and convenient until the furnace was again placed within its limits on the next day. But this was a separate and independent act, by a person acting under no authority or license from the defendants, occasioning a new obstruction to public travel, which had no necessary connection with that existing on the day previous, and of which the acts done on the day previous could give no notice, either actual or constructive, to the defendants. Existence of a previous defect or nuisance, which has been removed, has no tendency to prove a subsequent one, or to show notice to the city that another similar obstruction will be created. It was therefore incompetent for the plaintiff to show any facts in relation to the use of the furnace within the limits of the street on the day before the accident occurred.

For the same reason, the plaintiff could not prove the statements made by the police officer. They related solely to the fact of his seeing the furnace on the day previous; and being irrelevant and immaterial, it was not competent to contradict them for the purpose of impeaching his credit. It is only on matters material to the issue, that the statements of a witness can be contradicted.

Upon the question of notice to the town, the instructions were correctly stated and properly guarded. The statute requires reasonable notice to a city or town of the existence of a defect, in order to render them liable to an action for damages. Mere proof of notice to one or more of the inhabitants does not establish the requisite notice, because it is not their duty to repair the defect or remove the obstruction. 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 existence of the defect, or with proper vigilance and care might have known it. Such knowledge may be inferred from the length of time during which the defect has existed, from the central position and publicity of the place where it exists, and any other circumstances which tend to show its notoriety. In the present case, taking into view the nature of the alleged defect, and the brief time during which it had existed, we are of opinion that the instructions were sufficiently favorable to the plaintiff. See Reed v. Northfield, 13 Pick. 98.

Exceptions overruled.