283 Mass. 517 | Mass. | 1933
This is an action of tort to recover damages for personal injuries, sustained by the plaintiff by reason of a defective manhole cover in the sidewalk which the defendant, as alleged, was bound to keep in repair.
At the close of the evidence the judge on the defendant’s motion directed a verdict for the defendant, and the plain
At the trial it was agreed by counsel that “the street in question was a public way and that the manhole was constructed by a contractor employed by the Edison company in 1923”; that “A permit was issued May 23, 1923, on its application for the construction of a conduit running the length of Quincy Street, and that the permit included building of a manhole on which' the plaintiff fell”; that “In the summer of 1927 the Edison company was ordered to make certain manholes conform to a certain grade set by the city engineer and that the manholes were constructed and set to that grade, including the manhole on which the plaintiff fell”; that “the work was passed upon and inspected and that the Edison company had no right to do anything at that time other than what the city engineer and the city inspector ordered to be done”; and that “when the Edison company left there the sidewalk had not been laid, but that the manhole was constructed at the grade given by the city engineer and left in that condition and passed by the city inspector on the job.”
A bond was admitted in evidence over the defendant’s objection and exception for the purpose of showing control and for the purpose of showing an agreement for indemnification which would entitle the plaintiff to bring action against the Edison company. No technical objection was raised to the execution of the bond. The bond was as follows: “Know- all men by these presents that we, the Edison Electric Illuminating Company of Boston, Massachusetts, as principal, and Fred G. Haven of Somerville, Mass., as surety, are holden and stand firmly bound unto
For the purpose of showing control of the manhole evidence was admitted that on March 4, 1929, the defendant made an opening on Quincy Street at the Phillips Brooks School for the purpose of repairing a manhole. It further appeared that following the thirtieth day of January, the day of the accident, two squares of granolithic pavement were relaid around the manhole in question by the contractor who built the paving; and that a permit in the form of an order issued to the contractor, which read: “Henry F. Malley” “You are hereby authorized and directed to repair two blocks of artificial stone sidewalk at the expense of the Edison Electric Illuminating Company. This order is not good unless approved by the Edison Electric Illuminating Company.” This order referred to the location of the manhole in question and was approved by the Edison Electric Illuminating Company. “It was agreed that there was no application to repair the two blocks of concrete in the application to repair the manhole cover on March 4, 1929, but there was an order given to repair them and the re
The report describes the accident to the plaintiff in substance as follows: The plaintiff lived, and had a place of business, on Quincy Street, Hoxbury. January 30, 1929, “was a dull day” and “there was no snow on the sidewalk.” At 7:50 a.m. he left his house to go to his place of employment. As he was walking on the sidewalk his attention to his footing was momentarily diverted therefrom by a salutation coming from a man riding in an automobile. He turned his head to see who was calling and coincidently he stepped on the top of a manhole cover; “his foot twisted ... his ankle turned over and he fell down” and sustained injuries for which he seeks damages in this action.
The manhole itself is of brick set on a solid foundation. It is five feet deep by three and one half feet wide and five feet long, and is built on a concrete floor. The entrance to the manhole is a circular opening twenty-nine inches across, rimmed with an iron casting which rests on iron rails and encloses the top of the manhole chamber. The only part of the manhole visible from the sidewalk is the edge of the casting and the solid iron cover. The sidewalk at the place where the accident occurred was of concrete construction and about eight feet wide, the back of the sidewalk being three inches higher than the curbing. When the sidewalk was laid and finished in October or early November, 1927, the casting “was level with the sidewalk and agreed with its slope.” There was evidence to warrant a finding by the jury that at the time of the accident, and before for about six months, the sidewalk was one and one half inches
The defendant does not contend by oral argument or brief that the picture of the condition of the cover of the manhole in its relation to the surface of the adjacent sidewalk was misdescribed by the plaintiff and his witnesses, nor does it contend orally or in its brief that the plaintiff was guilty of contributory negligence. The evidence clearly warrants a submission to the jury of the issue whether there was a defect in the travelled way which caused it to be unsafe for travel. We deem the defence of contributory negligence to be waived. The defendant contends that the plaintiff cannot recover because he did not give the defendant the proper statutory notice the city would be entitled to receive had the action been against the city. G. L. c. 84, §§ 15, 18. The requirement of notice is not applicable in the form of action chosen by the plaintiff. Fisher v. Cushing, 134 Mass. 374. Seltzer v. Amesbury & Salisbury Gas Co. 188 Mass. 242. Jones v. Collins, 188 Mass. 53. The limitation of damages to $4,000, under G. L. c. 84, § 15, does not prevent recovery of a greater sum in an action against private corporations or individuals. Mooney v. Edison Electric Illuminating Co. 185 Mass. 547.
The defendant obtained a location under G. L. c. 166, §§ 21, 22. It constructed under the terms of that statute and in accordance with the ordinances of the city of Bos-, ton, one of which, c. 27, § 18, of the Revised Ordinances of the City of Boston (1925), reads: “every person main
We are of opinion that there was sufficient evidence to warrant the jury in finding that the manhole, while it was in the control of the defendant, had sunk in the sidewalk, and if the jury found that such was the fact, they would
So ordered.