305 Mass. 373 | Mass. | 1940
The plaintiff recovered damages for personal injuries, alleged to have been caused by a defect in a public way in the defendant city. The only question presented is whether there was error in the denial of the defendant’s requests for rulings.
The jury could have found that between three-thirty and four o’clock in the afternoon of October 11, 1936, the plaintiff fell as a result of a defect in the sidewalk. G. L. (Ter. Ed.) c. 84, §§ 1, 15, 18. Earth and other material had washed down a hill to the sidewalk, thereby narrowing the width that was fit for travel from nine feet to approximately eighteen inches. Upon this narrowed width there was a lump of earth, seven or eight inches high, with a hole at the bottom three or four inches deep and about a foot in circumference. The plaintiff had been watching a street
The requests that have been argued are, in substance, that inasmuch as the plaintiff testified that (2) before she reached the spot where she fell, she saw other people ahead of her go around the lump, and failed to avoid “stepping on it,” (3) that she saw the lump while she was walking toward it and failed to avoid stepping on it, (4) that she knew the lump was on the sidewalk “for a period of thirty years prior to the date of the accident,” saw it on that day and failed to avoid it; and that if the jury found (6) that “she saw it there before she stepped on it,” (7) that she was not in the exercise of due care, and (8) that she failed to do what a reasonable and prudent person would have done to avoid falling “on this particular spot,” she could not recover. The trial judge in his instructions to the jury, which are reported in part, referred to the plaintiff’s testimony to the effect that she knew of the condition of the sidewalk and had gone over it regularly, and he stated that the fact of her knowledge was not necessarily conclusive against her, that, having in mind her previous knowledge of the conditions, it was a question of fact for the jury whether at the time she was injured she was in the exercise of due care, and that her due care was a clear issue of fact.
Knowledge of a plaintiff as to the existence of defective conditions in a public way that he is using has an important
We think that there was no error in the manner in which the trial judge dealt with the defendant’s requests. In so far as they related to fragmentary portions of the evidence, he was not required to deal with them specifically. Barnes v. Berkshire Street Railway, 281 Mass. 47, 50-51.
Exceptions overruled.