Harriman v. City of Boston

| Mass. | Nov 15, 1873

Colt, J.

The question of principal difficulty which has been here discussed, and upon which the case seems to have turned, relates to the sufficiency of the evidence to charge the defendant with notice of the alleged defect. Under our statute, if the defect has not existed for twenty-four hours, the plaintiff must show that the defendant had reasonable notice of it or fail in his action. What is meant by reasonable notice is not defined. By the St. of 1786, c. 81, reasonable notice was for many yea; j the condition upon which towns charged with it were subject tc double damages for injuries of this description. In an early ease, in answer to the argument that it must be notice similar to that which the law requires in the service of a writ, or ai least notice to the surveyor or to some principal inhabitant, it was said by this court, that towns were bound to take notice of and guard against open and visible defects and such as could be prevented by common and ordinary diligence. Lobdell v. New Bedford, 1 Mass. 152" court="Mass." date_filed="1804-11-15" href="https://app.midpage.ai/document/dana-v-prescott-6402747?utm_source=webapp" opinion_id="6402747">1 Mass. 152. So in Reed v. Northfield, 13 Pick. 94, 98, it was held that notice of a defect might be inferred from its notoriety and from its continuance for such length of time as to lead to the presumption that the proper officers of the town knew, or with proper vigilance and care might have known the fact. Changes have from time to time been made in the law imposing this liability, but the phrase “ reasonable notice,” as applied to defects which have not existed for twenty-four hours, is still retained, and has received the same construction in the more recent cases. The distinction is observed between actual and constructive notice, between direct evidence of notice and circumstantial evidence tending to prove it, and in all the cases notice proved in either mode is held sufficient. Donaldson v. Boston, 16 Gray, 508. Howe. v. Lowell, 101 Mass. 99" court="Mass." date_filed="1869-01-15" href="https://app.midpage.ai/document/howe-v-city-of-lowell-6415608?utm_source=webapp" opinion_id="6415608">101 Mass. 99. Ryerson v. Abington, 102 Mass. 526" court="Mass." date_filed="1869-10-15" href="https://app.midpage.ai/document/ryerson-v-inhabitants-of-abington-6415827?utm_source=webapp" opinion_id="6415827">102 Mass. 526.

A majority of the court, under this interpretation of the statute and upon the evidence here reported, are of opinion that on the question of notice the plaintiff has the right to go to the jury.

The trap door of a cellar-way projecting into the sidewalk of a city, into which the plaintiff falls at noon, is proved to have been opened early in the morning. There is no evidence of any purpose for which it was opened on that day, or of any use made of it, as a pasgage-way to or from the cellar. On other occasions it was used by the occupant of the store above for taking in coal and wood, and for other access to the cellar. There was evidence that the door when shut could be raised only from the inside. The occupant of the store testified that he did not open the door himself, or cause it to be opened, or know by whom it was opened on the day of the accident. There was no direct evidence as to whether it was open or closed between the time when it was seen open in the morning and the time of the accident. But we cannot say under all the circumstances that the plaintiff may not well rely on the presumption of continuance in establishing the fact that it did remain open and did continue a visible defect in the sidewalk for the time named. The weight of that presumption in any case must vary with the nature of the defect proved, and according to its permanent, or temporary and changeful character. The cellar door of an occupied building, seen open for actual use, and properly guarded by a person in charge, might furnish no ground for inference that it remained open when its use ended, while such a door in a vacant building, found open without reason, with no one in charge, might fairly be presumed to have continued open until shown to have been closed. And in the case here reported, there is no principle of law which precludes the jury from finding as a matter of fact, that this trap door was left open, as the plaintiff contends.

We cannot say as matter of law, in view of the nature, duration, exposed position and dangerous character of this defect, in connection with the duty which may fairly be imposed upon the officers of the city, that there is not enough shown to warrant the jury in finding that the proper officers of the city, whose duty it is to attend to municipal affairs, either knew or with proper vigilance and care might have known of it in time to have prevented by reasonable effort the injury complained of.

The circumstances which in any case will be sufficient in law to charge the defendant with implied or constructive notice cannot be stated in advance. When there is any evidence which can fairly be relied on, the question is for the jury, to be decided by them upon inferences of fact, in view of the duties which in their judgment may be fairly imposed upon the officers of cities and towns under the infinitely varied features of each case.

The refusal of the court to take the case from the jury can in no case be construed as an indication that the finding should be for the plaintiff. It is often the duty of the court to submit a question of fact to the jury upon the plaintiff’s request, when the preponderance of evidence may appear to be against him.

Case to stand for trial.