Sullivan v. City of Worcester

| Mass. | Feb 8, 1919

Braley, J.

The plaintiff, a pedestrian, while passing over a sidewalk constructed partly of dirt and partly of concrete or granolithic forming part of a way in the defendant city known as Prospect Street, reached a point where the granolithic and dirt walks joined leaving the granolithic some four inches above the grade, when she tripped and fell, suffering personal injuries for which damages are sought. While the defendant by the first ruling asked for a directed verdict on all the evidence, the question of the plaintiff’s due.care has not been argued, and if the street where the accident happened was a public way which the city by R. L. c. 51, § 1, was bound to keep in repair so that it should be reasonably safe and convenient for travellers, there was, under § 18, evidence for the jury of the defendant’s negligence, and the fourth request could not have been given. Thomas v. Winthrop, 222 Mass. 456" court="Mass." date_filed="1916-01-24" href="https://app.midpage.ai/document/thomas-v-inhabitants-of-winthrop-6433377?utm_source=webapp" opinion_id="6433377">222 Mass. 456. Campbell v. Boston, 189 Mass. 7" court="Mass." date_filed="1905-09-07" href="https://app.midpage.ai/document/campbell-v-city-of-boston-6429037?utm_source=webapp" opinion_id="6429037">189 Mass. 7.

The defendant’s main ground of defence is, that the street was not a public way. The history, of the title over which there was no dispute shows and the jury could find, that in 1870 or 1871 the trustees of the Lunatic State Hospital at Worcester began the development of a very large tract of unimproved land by dividing it into building lots which were placed on the market for sale. The plans which were prepared show the street in question to have been laid out between 1880 and 1882. The lots were sold and houses built, and the street was continuously used not only by the abutters and those dealing with them, but by the general public from 1882 to 1915, a period of thirty-three years prior to the accident. If a distinction is made between the use of the street by the abutters and the general public, the evidence amply warranted a finding that for at least twenty years before the present action accrued the use of the street by travellers was indistinguishable from the use of public ways in the vicinity with which the street connected. It does not appear that such use ever was interrupted by the. original owner of the entire parcel, or by any of the subsequent owners of lots. The continuous use, however, by the public, even if with the implied assent of the abutters and their predecessor or predecessors in title, is evidence of the exercise of adverse rights. Bigelow Carpet Co. v. Wiggin, 209 Mass. 542" court="Mass." date_filed="1911-09-05" href="https://app.midpage.ai/document/bigelow-carpet-co-v-wiggin-6431528?utm_source=webapp" opinion_id="6431528">209 Mass. 542, 547, and cases there cited. Aikens v. New York, New Haven, & Hartford Railroad, 188 Mass. 547" court="Mass." date_filed="1905-07-07" href="https://app.midpage.ai/document/aikens-v-new-york-new-haven--hartford-railroad-6429026?utm_source=webapp" opinion_id="6429026">188 Mass. 547, 549.. But this is not all the evidence on the question. It is settled that admissions of the city or town by making repairs or using the way for municipal improvements is evidence of its existence as a highway. Reed v. Mayo, 220 Mass. 565" court="Mass." date_filed="1915-04-01" href="https://app.midpage.ai/document/reed-v-mayo-6433126?utm_source=webapp" opinion_id="6433126">220 Mass. 565, 567. . Barron v. Watertown, 211 Mass. 46" court="Mass." date_filed="1912-02-26" href="https://app.midpage.ai/document/barron-v-inhabitants-of-watertown-6431675?utm_source=webapp" opinion_id="6431675">211 Mass. 46, 49. The laying of water pipes, the construction of a sewer, the installation and maintenance of a tungsten light in the street, and the construction of “a granolithic sidewalk with granite curbing and cobble gutter on the southerly and easterly .side of Eastern Avenue from present walk to Prospect Street,” in the order for which Prospect Street is not designated as a private way, accordingly were acts showing recognition of, and assumption of control over the street, to be ■considered by the jury in connection with the admitted fact, that in 1907 the petition of some of the abutters to have Prospect Street made a public way was denied by the board of aldermen. Jennings v. Tisbury, 5 Gray, 73. Hayden v. Attleborough, 7 Gray, 338, 344. Bassett v. Harwich, 180 Mass. 585" court="Mass." date_filed="1902-02-28" href="https://app.midpage.ai/document/bassett-v-inhabitants-of-harwich-6427754?utm_source=webapp" opinion_id="6427754">180 Mass. 585. Reed v. Mayo, 220 Mass. 565" court="Mass." date_filed="1915-04-01" href="https://app.midpage.ai/document/reed-v-mayo-6433126?utm_source=webapp" opinion_id="6433126">220 Mass. 565. Flack v. Green Island, 122 N.Y. 107" court="NY" date_filed="1890-10-07" href="https://app.midpage.ai/document/flack-v-village-of-green-island-3587667?utm_source=webapp" opinion_id="3587667">122 N. Y. 107, 115.

It was therefore for the jury to. determine on all the evidence whether Prospect Street had become a highway by prescription, and the second, sixth, seventh, eighth, ninth, twelfth, thirteenth, fourteenth, seventeenth and eighteenth requests were denied rightly.

The tenth request that “There is no evidence that the granolithic sidewalk on Prospect Street, at the place where the plaintiff was injured, was constructed by or with the authority of the city,” and the eleventh request, that “Even if the jury find that' the granolithic sidewalk on Prospect Street was constructed under the direction of the street commissioner of the city, this would not be the act of the city, unless the city council adopted the order authorizing the street commissioner to construct said sidewalk,” could not have been given. The evidence wholly fails to show that the- sidewalk was actually constructed under the direction of the street commissioner, and as the jury could say the street had become a highway which the defendant was bound to keep in reasonably safe repair, it is responsible for the defect.

But even if. the plaintiff was entitled to go to the jury on the question whether a highway existed as alleged in the first count of the declaration, the third count alleges, that Prospect Street, not being a public but a private way dedicated to the use of the public, the city to avoid liability for defects therein was required under R. L. c. 48, § 99, either to close the way where it entered upon and united with the highways known as Eastern Avenue and East Shelby Street, or by other sufficient measures caution the public against entering thereon. It is not contended that Prospect Street had been closed, and the questions, whether public safety required the posting of signs, and, if so, whether upon conflicting evidence the statute had been complied with, were for the jury. Smith v. Lowell, 139 Mass. 336" court="Mass." date_filed="1885-05-08" href="https://app.midpage.ai/document/smith-v-city-of-lowell-6421686?utm_source=webapp" opinion_id="6421686">139 Mass. 336, 340. Fitzgerald v. Lewis, 164 Mass. 495" court="Mass." date_filed="1895-10-19" href="https://app.midpage.ai/document/fitzgerald-v-lewis-6425403?utm_source=webapp" opinion_id="6425403">164 Mass. 495.

The fifth request, that there is no evidence that public safety required the city to close the street, or tb caution the public against entering thereon at the time the plaintiff was injured, could not have been given in terms, and in so far as applicable it is covered by the instructions.

The fifteenth and sixteenth requests, that the posting of signs was conclusive against the acquisition of any prescriptive rights by the public, depended upon the view the jury took of the evidence, and were properly refused.

It follows that the exceptions must be overruled.

So ordered.