318 Mass. 19 | Mass. | 1945
These are three actions of tort to recover compensation for personal injuries sustained in circumstances set forth below. The actions are brought by the same plaintiff against the town of Brookline, the Brookline Trust Company and Cyril ,C. Reynolds, doing business as Milton F. Reynolds & Son, respectively. The cases come before us on the plaintiff’s exception to the action of the judge in allowing the defendant’s motion in each case for a directed verdict.
The evidence in its aspect most favorable to the plaintiff would have warranted the jury in finding the following facts: On November 28, 1941, the defendant town through its superintendent of streets issued a permit to the defendant Reynolds, in the name of M. F. Reynolds & Son, grant
At the conclusion of the evidence the judge allowed the defendant’s motion for a directed verdict in the case against the town of Brookline, without passing then on the motions of the defendants in the cases against the Brookline Trust Company and Reynolds for directed verdicts, submitted to the jury the question, “Was the erection and maintenance of the scaffolding or staging, as it existed on December 31, 1941, authorized by Exhibits 2 and 3?” and instructed them that the question for them to decide was “whether or not this so called permit, this paper, was issued by the authorities of Brookline, granting permission to M. F. Reynolds & Son Co. [mc] to occupy a space not exceeding twenty
The submission to the jury of the question as to the proper interpretation of the terms of the permit, which were plain and free from ambiguity, was erroneous. In the construction of written instruments words that are plain and unambiguous must be construed according to the common and approved usage of the language, that is, in their usual and ordinary sense. G. L. (Ter. Ed.) c. 4, § 6, Third. Morse v. Boston, 260 Mass. 255, 262. Levin v. Century Indemnity Co. 279 Mass. 256, 258. And it is only where more than one view can be taken of the evidence respecting the circumstances of the parties and the condition of the subject with which they are dealing that a proper case arises for the jury. Atwood v. Boston, 310 Mass. 70, 75, and cases
We are not concerned in the case against Reynolds with any question of negligence on his part. The evidence would have warranted a finding that the structure which was erected by him, was an unlawful obstruction or nuisance in the public way. Nevertheless, just as in cases of negligence, the plaintiff in order to prevail must show that the nuisance was the proximate cause of her injury, an effective and contributing cause and not merely a condition or an attendant circumstance. Dalton v. Great Atlantic & Pacific Tea Co. 241 Mass. 400, 403. McKenna v. Andreassi, 292 Mass. 213, 216-217, and cases cited. Bullard v. Mattoon, 297 Mass. 182, 186-187. Jones v. Hayden, 310 Mass. 90, 95. In the instant case the jury could have found that the plaintiff was injured' as she was proceeding on the sidewalk by tripping over the so called kick-piece at the bottom of
With respect to the case against the town, we think that case also should have been submitted to the jury on the question whether the plaintiff’s injuries were caused by a defect in the highway. The counts of the plaintiff’s declaration relied upon by her are sufficient to raise the issue whether her injuries resulted from such a defect. We are of opinion that the obstruction of the way in the present case could have been found by the jury to have been a defect within the meaning of the governing statute, G. L. (Ter. Ed.) c. 84, § 15. Junkins v. Stoneham, 234 Mass. 130, 133. Witham v. Boston, 262 Mass. 291. Guidi v. Great Barrington, 272 Mass. 577, 579. "Objects resting upon the surface of a properly wrought way, if of a nature to obstruct travel, have been held to make the way defective.” Bowman v. Newburyport, 310 Mass. 478, 481, and cases cited. See West v. Lynn, 110 Mass. 514; Arey v. Newton, 148 Mass. 598; Valvoline Oil Co. v. Winthrop, 235 Mass. 515. A "defect” or "want of repair” in the highway "is anything in the state or condition of the highway which renders it unsafe or inconvenient for ordinary travel.” Gregoire v. Lowell, 253 Mass. 119, 121. It is enough that it makes dangerous any mode of travel which the public has a right to use. Powers v. Boston, 154 Mass. 60, 62. And an unlawful obstruction of the public way is a defect. See Snow v. Adams, 1 Cush. 443, 446; Stoliker v. Boston, 204 Mass. 522, 537; Cannon v. Worcester, 225 Mass. 270, 272. Whether the obstruction here in question was a defect was a question of fact for the jury, Thomas v. Winthrop, 222 Mass. 456, 457-458, since they could have found that the. illegal obstruction, the
The question remains whether the motion of the trust company for a directed verdict in its favor was allowed properly. Since the illegal obstruction of the sidewalk in front of the premises of the trust company was a nuisance, and no question of negligence on the part of the trust company is involved, and the jury could have found that the obstruction was the proximate cause of the plaintiff’s injuries, as before pointed out, and could also have found properly that it was placed in front of the premises of the trust company by Reynolds in accordance with an agreement made with him by the trust company, we are of the opinion that the fact that Reynolds acted as an independent contractor in erecting and supervising the structure in the unauthorized location where it was at the time of the accident does not absolve the trust company from liability to the plaintiff. The jury could have found that the trust company was in control of the locality of the- obstruction. There is nothing in the statute relative to the liability of municipalities for injuries sustained by one as a result of a
The case against the trust company as well as that against each of the other defendants should have been submitted to the jury. In each case the entry will be
Exceptions sustained.
The general terms and conditions are set forth in the record. They contain no description of the locus at which the permit was to be used other than as they incorporate by reference that defined in the permit. The terms and conditions provide that the licensee shall indemnify the town for any damage sustained or required to be paid by it by reason of the doing of the work or by reason of any violation of any specification in the permit. See Boston v. A. W. Perry, Inc. 304 Mass. 18.