223 Mass. 525 | Mass. | 1916
The plaintiff, while crossing Boylston Street in the city of Boston from the store numbered 332 on that street to the farther side of the street where she intended to post a letter at a mail box located near the corner of Arlington Street, was injured by reason of an alleged defect in the street.
The plaintiff testified that when she was crossing over the outbound street railway track, she stepped upon a plank lying next to the most northerly rail and that the plank “gave way under my foot, and I caught — I twisted my anide and caught my heel on the edge of the plank as it turned up and lost my balance.”
The city was not released from liability because the work was being done by a contractor employed by the transit commission. Connelly v. Boston, 206 Mass. 4. Torphy v. Fall River, 188 Mass. 310.
We are also of opinion that the question whether the defendant company was negligent was for the jury. An independent contractor is liable for negligence in the conduct of a public work by private contract, Murray v. Boston, 219 Mass. 501, although, if the transit commission had performed the work itself, the city of Boston would not be liable to the plaintiff, as the transit commissioners are public officers. Mahoney v. Boston, 171 Mass. 427. The jury were warranted in finding that the plank was in an unsafe condition due to the negligence of the defendant company. Rockwell v. McGovern, 202 Mass. 6.
We cannot agree with the contention of counsel for the defendants that under St. 1911, c. 741, § 18, the word “traffic” did not
The jury would have been warranted in finding that the plaintiff was in the exercise of due care.
The testimony of the plaintiff and of the witness Clarkson as to their observation of the plank three weeks after the accident was admissible to show its condition at the time of the accident, and was admitted solely for that purpose.
Without considering in detail all the defendant’s requests, we are of opinion that they were covered by the instructions to the jury so far as they properly could have been given.
The entry in each case must be
Exceptions overruled.