348 Mass. 734 | Mass. | 1965
This is an action of tort brought originally
by Margaret T. Watson (plaintiff) to recover compensation for personal injuries sustained by her on October 23, 1958, as a result of a fall on Washington Street, a public way in the Dorchester section of Boston.
The first count charged Amara with negligence in the performance of its duty “to keep . . . [Washington Street] in a reasonably safe condition for travellers to pass there-over.” More specifically, it averred that a “defective and dangerous condition” existed “without any barrier ... or other proper warning.” At the conclusion of the evidence Amara presented a motion for a directed verdict, which was denied, subject to its exception. This exception presents the sole question for decision.
There was evidence tending to show the following: On October 23, 1958, at about 8 p.m. the plaintiff fell in a “depression consisting of a difference in the elevation between the road surface and a cast iron cover, circular in shape, about six inches wide, and bearing the imprint ‘C,’ causing a variation of about four to five inches in elevation, [and] causing a depressed condition adjoining the cast iron set-off or cover over an area of about two feet long by two feet wide by five to six inches in depth.” The circular casting was on a crosswalk on Washington Street, a heavily traveled way.
The condition of the casting, as well as the immediate surrounding road surface, was the result of work Amara had contracted to do for the city of Boston. The contract provided for the laying of new artificial stone sidewalks, resetting edgestones, raising water and sewer castings, and resurfacing the roadway. A permit was issued to Amara by the city on March 24, 1958. Work was begun on June 30,1958.
On or about September 15, 1958, Amara notified various utility companies to raise their castings so that a final level of hot top could be spread over the roadway by Henry
The plaintiff’s right to recover is grounded on the theory that Amara was negligent in not warning her of the condition of the roadway. The case at bar closely resembles Scholl v. New England Power Serv. Co. 340 Mass. 267, 270, where we held that a power company could be found to have been negligent “in failing to warn travellers of . . . [an] excavation or to provide adequate barriers around it.” Amara’s duty under Rev. Ord. of Boston (1947) c. 27, § 9.2,
Amara contends that the record contains no description of the conditions and circumstances prevailing at the time of the accident. Apparently the basis of this contention is the admission of a letter dated November 19, 1958, sent by the plaintiff to Amara and the use of this letter to establish facts which were said to have existed at the time the plaintiff was injured. "While the letter was in the form of a purported notice, no such notice was required by Gf. L. c. 84, §18. Jones v. Collins, 188 Mass. 53, 58. Miller v. Edison Elec. Illuminating Co. of Boston, 283 Mass. 517, 522. Lawless v. Trustees of N. Y., N. H. & E. R.R. 310 Mass. 211.
There is no doubt that the letter, if objected to, would have been inadmissible, unless — as does not appear to be the case — it was offered as a declaration of a deceased person and the requirements of Gf. L. c. 233, § 65, were met. But the letter was admitted without objection and without limitation. It, therefore, was competent for all purposes including its use as evidence for the truth of the facts stated in it. Blackman v. Coffin, 300 Mass. 432, 437. Pochi v. Brett, 319 Mass. 197, 203. Commonwealth v. Reynolds, 338 Mass. 130, 135-136. See Solomon v. Dabrowski, 295 Mass. 358. If this were a case involving proof of a notice required by law, a different question would be presented. In such a situation, it could be argued that the opposing party could rightly assume that the admission of the letter, despite the failure to limit its use, was for the sole purpose of satisfying the statutory requirement. But we need not decide that point.
We have considered all the questions argued and have dealt with those which require discussion.
Exceptions overruled.
The plaintiff died before the trial and her case is now being prosecuted by her executrix.
This ordinance reads in relevant part: ‘ ‘ That the person receiving the permit shall place and maintain from the beginning of twilight, through the whole of every night, over or near the place so occupied, opened, obstructed or used, and over or near any dirt, gravel or other material placed in or near such place, a light or lights sufficient to protect travelers from injury; shall place and maintain a safe and convenient way, satisfactory to the commissioner, for the use of foot travelers and for vehicles around or over such place. ’ ’ On the back of the permit issued to Amara the substance of the ordinance was set forth.