250 Mass. 368 | Mass. | 1924
This is an action under G. L. c. 84, § 15, to recover for personal injuries received by the plaintiff by reason of falling upon a sidewalk in the defendant town. She testified that as she was going along she struck her foot against a stump and stumbled and fell on the ice; that the ice was in a hole in the sidewalk near the stump and a patch had been put over the hole; that the stump was about four or five inches higher than the sidewalk; that it was in the gravel or sand part of the sidewalk alongside the concrete; that a root of the stump ran into the edge of the concrete and raised the latter; that it was alongside the hole; that water always accumulated in this place when it rained and that sometimes after a heavy rain there were three or four inches of water in the hole; that at the time of the accident there was a little snow and ice on the walk; that she had noticed the stump and hole there before; that she did not look for it that morning and did not think about it. On redirect examination she testified that the stump was partly covered with snow which prevented her seeing it. In answer to inquiries by the presiding judge, she testified that “ the tree itself was on the grass but the roots extended into the sidewalk. The stump was in on the concrete right in the edge of the sidewalk. ' I struck my foot on the stump of the tree ■and stumbled and fell.’ ”
' The notice served on the defendant described the cause of her injuries as follows: “ Her said fall was caused by the defective condition of said sidewalk and ice having formed thereon. The condition of the said sidewalk was such where she fell as to cause the water to accumulate thereon so as to make the place dangerous when ice formed thereon. ...” Under G. L. c. 84, § 18, the notice is not invalid or insufficient solely by reason of any inaccuracy in stating the time, place
We need not decide whether the notice would have been sufficient before the enactment of St. 1882, c. 36, and St. 1888, c. 114, now embodied in G. L. c. 84, § 18. See Shea v. Lowell, 132 Mass. 187; McDougall v. Boston, 134 Mass. 149; Cronin v. Boston, 135 Mass. 110; Roberts v. Douglas, 140 Mass. 129, and other cases relied on by the defendant.
It is contended by the defendant that there was a variance between the notice and the evidence as to the cause of the injury, which is fatal to the plaintiff’s case. The notice recites that the plaintiff’s fall was due to a defective condition of the sidewalk and ice formed thereon. She testified that her foot struck against the root of the stump and then she slipped on the ice and fell. It is plain that it could not have been ruled that there was a variance, as the defendant contends.
The allegations in the declaration are that the plaintiff was injured by slipping upon ice which had accumulated in a hollow in the sidewalk near the stump of the tree. G. L. c. 84, § 17, provides that a town is not liable for an injury or damage sustained in a public way by reason of snow
In the case at bar there was evidence that the accident was partly due to ice as a proximate cause, and that the stump or root near the edge of the walk, against which the plaintiff struck her foot and fell, was a defect to which the accident was in part attributable. In these circumstances the defendant may be held liable. Fuller v. Hyde Park, supra. McCabe v. Whitman, 187 Mass. 484. Neilson v. Worcester, 219 Mass. 88.
The testimony of the plaintiff that she knew of the stump, and knew of the depression in the sidewalk but forgot about it and did not look for it the morning of the accident, is not necessarily a bar to recovery. Although such knowledge on her part was evidence for the jury on the question of her due care, it could not be ruled as matter of law to constitute negligence. McGuinness v. Worcester, 160 Mass. 272. Fuller v. Hyde Park, supra. Winship v. Boston, supra. McCarthy v. Stoneham, supra. Gilman v. Deerfield, 15 Gray, 577. Wilson v. Charlestown, 8 Allen, 137, and other cases cited by the defendant, are readily distinguishable in their facts from those of the present case.
The questions, whether the plaintiff was in the exercise of due care, and whether the sidewalk was unsafe for travel-ling and the defendant knew of the defective condition or ought to have known of it and remedied it, were for the jury. The exception to the allowance of the motion that a verdict be directed for the defendant must be sustained, and in accordance with the report a new trial is granted.
So ordered.
