Williamson v. Boston Elevated Railway Co.

259 Mass. 229 | Mass. | 1927

Carroll, J.

These are two actions of tort for personal injuries. The city of Boston and the Boston Elevated Bail-way Company are the defendants.

The plaintiff, a passenger in one of the cars of the railway company, in alighting from the car between five thirty and six o’clock on the evening of October 2, 1923, stepped into a hole or depression in the street and was injured. The street, it was agreed, "was an accepted street of the city of Boston.” Statutory notice was given the city. The depression was about two feet from the car track; it was from six to twelve inches deep and had existed for some time prior to the date of the accident. There was evidence that the commissioner of public works of the city of Boston had been notified of the hole; that repairs had been made by filling the depression with “a soft filling” which “didn’t last any time . . . the first truck that came along made an impression on it,” and in “a month or maybe longer” it would be “eight or ten or twelve inches deep again.” There was further evidence tending to show that the city might have had reasonable notice of the defect and want of repair. The jury could have found there was a defect in the way; that the city of Boston could have remedied the defect by the exercise of proper care and diligence; and that the plaintiff was in the exercise of proper care. G. L. c. 84, § 15. See Marvin v. New Bedford, 158 Mass. 464; Williams v. Winthrop, 213 Mass. 581. The defect must have been the sole cause of the plaintiff’s accident to permit her to recover against the city of Boston. Babson v. Rockport, 101 Mass. 93. It could have been found, however, that this defect was the direct and proximate cause of the plaintiff’s injury, and “other concurring conditions which do not involve negligence or culpability, even if they come into a causal relation to the accident, do not reheve the city or town from liability.” Block v. Worcester, 186 Mass. 526, 528, and cases cited.

Boudreau v. Springfield, 257 Mass. 105, and similar cases where the depression was so slight as not to constitute a defect, are inapplicable.

In the case against the Boston Elevated Railway Company there was no evidence of negligence. A street railway company as a carrier of passengers may be liable for negligence in failing to warn a passenger of danger in alighting from one of its cars, or in failing to see that he alights in safety. Wakeley v. Boston Elevated Railway, 217 Mass. 488. See Joslyn v. Milford, Holliston & Framingham Street Railway, 184 Mass. 65; Farrington v. Boston Elevated Railway, 202 Mass. 315, 319-320. But without reviewing in detail the facts, the case against the Boston Elevated Railway Com-pony in our opinion is governed in principle by Lenoue v. Worcester Consolidated Street Railway, 257 Mass. 285, and cases cited.

According' to the terms of the report, judgment is to be entered against .the city of Boston in the sum of $1,100. In the case against the Boston Elevated Railway Company judgment on the verdict is to be entered for the defendant.

So ordered.