186 Mass. 115 | Mass. | 1904
These are two actions of' tort, one against the city and the other against the Boston Elevated Railway Company, for personal injuries sustained by the plaintiff in December, 1899, while travelling on that portion of a highway called Roxbury Street in Boston occupied by the railway company’s tracks. The actions were tried and have been argued together. At the close of the evidence the judge of the Superior Court ruled that the plaintiff could not recover in either action, and directed verdicts for the defendants. The cases are here on exceptions by the plaintiff in each case to this ruling.
It appeared that a deep trench had been excavated in the street for the purpose of laying a drain from a building in the process of erection to the main sewer. The trench extended under the railway track, and it was admitted that the drain was being laid under a permit from the city to one Shaughnessy. The evidence tended to show that the trench had been there four or five days. At the time of the accident the sidewalk and the street in front of the building were obstructed so that it was impossible to pass along the sidewalk, or the street between the
The first question is whether the plaintiff was in the exercise of due care.
We think that it could not be ruled as matter of law that she was not. The street, as already observed, was not closed to travel. The street cars were running through it, and teams and travellers were passing on the side opposite to that on which the building was in the process of erection. The obstructions extended only to the first track, and were not such in character or extent as necessarily to show the plaintiff that in attempting to pass through the street she did so at her own peril. Sampson v. Boston, 184 Mass. 46. Leonard v. Boston, 183 Mass. 68. Butman v. Newton, 179 Mass. 1, 9. White v. Boston, 122 Mass. 491. The circumstances were materially different from those in the cases of Jones v. Collins, 177 Mass. 444, and Compton v. Revere, 179 Mass. 413, relied on by the defendant city, and which are, therefore, not applicable. The plaintiff testified amongst other things that she was prevented from passing along the sidewalk or between the sidewalk and the tracks by reason of the
So far as the railway was concerned, it was under no obligation to keep the street in repair generally, or to see that the trench was guarded or lighted, or that reasonable precautions were taken for the safety of travellers. It was only bound to beep in repair “the paving, upper planking, or other surface material ” of the portions of the street occupied by its tracks,
So far as applicable to street railways generally this pi’o vision was repealed by St. 1898, c. 578, § 26. But it was expressly provided that the provisions of that act should not apply to the Boston Elevated Railway Company for twenty-five years from June 10, 1897. The law that was applicable at the time of the accident remains in force therefore so far as the railway company is concerned. Under that law, as already observed, it was bound to keep in repair the surface of Roxbury Street so far as included in its tracks and a distance of eighteen inches outside of them. The evidence was contradictory as to how far the trench had been filled when the plaintiff sank into it. The plaintiff and some of her witnesses testified that it had been filled level with the street within the location of the defendant’s track. The testimony of the witnesses for the city tended to show that there was a hole there, and left it uncertain to what extent the trench had been filled up. The railway company’s duty to repair did not begin till the trench had been filled up to a point where the company became responsible for the condition of the portions of the street that were occupied by its tracks (Leary v. Boston Elevated Railway, ubi supra); in other words till it had been filled to a point, where what might be properly described as the surface began. Whether the filling had reached that point was plainly a question of fact for the jury. Unless it had the railway company was not liable. If it had reached that point, then, there would remain the further questions, also for the jury, whether the railway company was or was not negligent in attending to the duty of repair thus imposed upon it, or in providing for the safety of travellers along that portion of the street, and, if it was negligent, whether its negligence contributed to the plaintiff’s injury.
For these reasons without considering other matters that have been argued by the plaintiff we think that the exceptions must be sustained as to both defendants. So ordered.