317 Mass. 295 | Mass. | 1944
In this action of tort there was evidence that would have warranted the jury in finding these facts. On September 13, 1940, at about 9:15 a.m. the plaintiff was walking easterly on State Street, Boston, on the. right-hand sidewalk. While crossing Congress Street (which intersects State Street) within the limits of the crosswalk, she “caught her toe against . . . [a] car track and fell forward on her face,” thereby sustaining injuries. There was no hole or depression in the street where the plaintiff fell. The car track protruded above the level of the street about two inches at the place of the accident and this condition had existed for at least a year prior thereto.
At the close of the evidence, on motion of the defendant, the trial judge ordered a verdict for the defendant subject to the plaintiff’s exception. The declaration contains two counts; the first (which is based on G. L. [Ter. Ed.] c. 84, § 15) alleges that the street was defective, and the second alleges a nuisance at common' law. The plaintiff does not
We think that the judge was right in directing a verdict for the defendant.
No case has been brought to our attention, and we have found none, where it has been held that, with respect to a street, a projection as small as that in this case, in the absence of other circumstances, would warrant a finding that there was a defect within the meaning of G. L. (Ter. Ed.) c. 84,- § 15.
We have not overlooked the fact that the accident in the case before us took place within the limits of a crosswalk on a much travelled street. Nevertheless, although the case is close, we think that it would cast an undue burden on "municipalities to hold that a variation from the street level as small" as this was an actionable defect. This is especially true where the alleged defect consists of a protruding car
Exceptions overruled.
It might appear, at first blush, that Callagy v. Boston, 297 Mass. 53, is such a case but we think, on analysis, that it is not. In that case, although the plaintiff tripped on a wooden block which protruded one to two inches above the immediately surrounding surface, the block was in a depression which at one point was three and one quarter inches deep. That case was regarded by the court as a close case.