183 Mass. 68 | Mass. | 1903
The accident in this case occurred on September 9, 1899, between eight and nine o’clock in the evening. The plaintiff, a girl about sixteen years old, was walking with her sister along Dorchester Avenue in Boston, when she came to a place in front of a blacksmith shop, where there was a board, with a lantern on the end, across a part of the sidewalk, running from the shop to a tree. Some thirty feet off was another board running from a building to a telegraph pole. The distance from the outside of the tree to the curbstone was about five feet and two inches, and the distance from the curbstone to the outside of the telegraph pole was two feet. The sidewalk was eleven or twelve feet wide. The enclosure of a part of the sidewalk was by authority of a permit from the superintendent of streets of the city of Boston.
The girls saw the board fastened to the tree, and the lantern; they passed on the outside of the tree, and after taking a step or two beyond it, the plaintiff fell over some stones and was injured. The jury returned a verdict for the plaintiff; and the case is before us on the defendant’s exceptions, with a full report of the evidence bearing upon the question of liability.
We are of opinion that the exceptions must be overruled. We do not consider it necessary to determine whether, under the permit which had been obtained from the superintendent of streets, the whole sidewalk could have been obstructed by barriers. The fact is that it was not so obstructed, and we are of opinion that the judge at the trial rightly ruled that the barriers obstructed only so much of the sidewalk as was within a line drawn from the tree to the telegraph pole. The case differs widely in its facts from Jones v. Collins, 177 Mass. 444, and Compton v. Revere, 179 Mass. 413. The sidewalk outside of the line between the tree and the pole was apparently open for travel. There was evidence in the case that there were no repairs being made on the sidewalk, and that it was not torn up.
The principal question argued by the defendant is that the
The remaining question is whether there was any evidence of negligence on the part of the defendant. The only reason given by the counsel for the defendant in his brief why there was no evidence of such negligence is that the sidewalk was closed by a barrier, and the defendant performed its whole duty. As we have already stated, the facts show that the sidewalk was not entirely closed. If there is any defence, it must be that the defect existed so short a time that the city did not have reasonable notice of it, or could not have had reasonable notice of it, by the exercise of proper care and diligence on its part. See Parker v. Boston, 175 Mass. 501. We are of opinion that, on the evidence, this question was for the jury.
The plaintiff testified that she fell on some stones that came from a pile of stones, some two feet high; that the stones ran right up on to that pile; and that when she fell her arm struck the pile. Her sister testified that the plaintiff fell into a pile of stones that were about two feet high, and sloped down on the sidewalk. One Langley, who went to the place of the accident, in company with the plaintiff’s father, the same evening, testified that he saw a pile of stones between the tree and the telegraph pole, which had been there for a few days; that the pile was two or three feet long and a foot and a half to two feet high, and that it sloped off toward the curbstone. The father of the plaintiff testified that after he passed the tree he noticed the pile of stones;. that the pile extended out from a line connecting the
Exceptions overruled.