278 Mass. 1 | Mass. | 1931
The only questions presented on this report are whether a condition at the curbstone of Ferry Street in Everett constituted a defect in the way for which the city was liable under G. L. c. 84, §§ 1, 15; and whether lack of due care of the plaintiff contributed to his injury.
In 1900 the city set edgestones along a sidewalk on Ferry Street southeast of Rock Valley Avenue. The stones, in general, stood seven inches above the level of the carriage way of Ferry Street; but at a point not far from Rock Valley Avenue, for a space of ten feet, the curb was laid about four and one half inches above the Ferry Street surface. This was done at a driveway then in use across the sidewalk to a house and stable on the abutting premises, in order to allow easy access to the driveway. There was left an abrupt drop of about two and one half inches where the ends of the lower and higher curbstones met. In 1914 the city laid a granolithic sidewalk in place of the earlier gravel walk; and, where the driveway ran, beginning about twelve inches from the outer surface of the edgestone, graded the new surface evenly down to the outer edge of the lower curbing. This left an abrupt rounded rise in the walk at either end of the depressed curb varying in depth from two and one half inches at the outer edge of the curb to nothing at a point twelve inches back toward the property line, as if a wedge ten feet long, twelve inches wide, and from nothing to two and one half inches in depth had been taken out of the level sidewalk. The surface of the walk and of the curbing was in good condition at the time of the accident, July 30, 1927. It was admitted that no defect existed unless the drop at the abrupt faces of the triangular ends of the higher curbstones constituted defects. At least a year before the accident the house and stable served by the driveway were demolished and a block of stores was built on the abutting lot flush with
On the forenoon of July 30, 1927, a truck in which the plaintiff was riding stopped parallel with the curb and about six inches from it, so that he could deliver some goods at a store a little behind the place at which it came to rest. The seat was about opposite the lowered curb at the end nearer the store he wished to visit. The door opened outward and toward the radiator. The plaintiff, with his back to the sidewalk, took a bundle from the driver and alighted by putting his right foot on the running board and next placing his left foot on the curbing where the higher and lower stones met. As the whole foot was not supported by either the higher or lower curbstone his ankle turned, and he was thrown down.
In our opinion there was no actionable defect.
The abutting owner was entitled to passage to his premises across the sidewalk for vehicles from the surface of the street travelled by them. Anzalone v. Metropolitan District Commission, 257 Mass. 32. Dwyer v. Metropolitan District Commission, 269 Mass. 573. A change of level in the surface of the sidewalk and curbing to accommodate such passageway, with abrupt drops at beginning and end, does not constitute an actionable defect in the way. Heaney v. Colonial Filling Stations, Inc. 262 Mass. 338. No one, we think, can justly claim that the city of Everett was liable for a defect in the way so long as the driveway was in use. Nor do we think what had not been a defect became a defect when the block of stores was built along the street line. The right to the driveway was in the abutting owner. Until he notified the city of an abandonment of the right, it was justified in leaving conditions as they were. The construction of the store block and the lapse of time thereafter do not, in our opinion, constitute sufficient notice of abandonment. Especially is this so where a doorway of the block is so placed that it can be served by the driveway. Any other rule would place an unreasonable burden upon
So ordered.