196 Mass. 18 | Mass. | 1907
The exceptions to the exclusion of evidence having been waived, the defendant’s remaining exceptions are confined to the refusal to give the sixth and tenth requests. In the discharge of the duty imposed by R. L. c. 51, § 1, the town was required to maintain the sidewalk where the plaintiff was injured, and which comprised a part of the highway, in a reasonably safe condition for public travel. Fitz v. Boston, 4 Cush. 365. Bodwell v. North Andover, 110 Mass. 511, n. Moynihan v. Holyoke, 193 Mass. 26. This issue, where the location and character of an alleged defect are in controversy, ordinarily is
It was undisputed that the sidewalk was constructed of asphalt, which had become depressed near the curbstone, although the evidence as to the extent and condition of the depression was contradictory. The testimony of the plaintiff, if believed, showed that the surface had become broken, forming a hollow about six inches in depth, which was irregular in shape, with sharp edges. But the evidence for the defendant, while describing a larger unbroken area of much less depth, also showed that the hollow had been filled solidly, and the entire surface had been made very nearly even with the street level. The sixth request asked for an instruction, that if the jury believed the defendant’s description, there was no evidence of any defect for which it could be held responsible. Upon conflicting evidence, it was properly open for them to accept the testimony of the defendant’s witnesses as correctly describing the condition of the street at the time of the accident. If they reached this conclusion the present case would then fall within the decision made in Newton v. Worcester, 174 Mass. 181, 188, and, the plaintiff having failed to establish as matter of law that the street was not reasonably safe for the use of travellers, the defendant would be entitled to a verdict. In the instructions given this distinction was overlooked, and the failure to give the request either in form or substance was error.
The plaintiff also was required to prove that in the exercise of reasonable diligence the town should have ascertained and remedied the defect. The defective condition was the hole in the sidewalk, however it might be bounded or described, and the knowledge of the superintendent of streets by whom it was discovered was sufficient notice to the defendant. R. L. c. 51, § 18. Campbell v. Boston, 189 Mass. 7, 11. If thereafter he made repairs on two occasions, his acts neither would be conclusive
Exceptions sustained.