Hutchings v. Inhabitants of Sullivan

Walton, J. This is an action to recover damages for injuries claimed to have been received through a defect in a concrete sidewalk in the town of Sullivan. There was a depression in the sidewalk about three feet long, two feet wide, and five and a quarter inches deep in the lowest place. The plaintiff says that as she was walking along on this sidewalk on a dark, foggy evening, she stepped into this depression and was thereby thrown down, breaking her arm and otherwise injuring herself. She has obtained a verdict for three hundred dollars; a.nd the case is before the law court on motions and exceptions by the defendants. We will first consider the exceptions. I. The Revised Statutes, c. 18, § 96, declare that when buildings or fences have existed more than twenty years fronting upon [137] any way, street, lane, or land appropriated to public use, the bounds of which can not be made certain by records or monuments, such buildings or fences shall be deemed the true bounds thereof. The defendants claimed at the trial in the court below that this statute does not apply to this class of cases, and that the plaintiff could not establish the limits of the way in question in the manner referred to, even by proof sufficient to satisfy all the requirements of the statute. The court ruled otherwise. We think the ruling was correct. II. The defendants claimed that the sidewalk in question was built by private persons, and that the town had never made any repairs on it, or assumed any responsibility for repairs on it; and the defendants requested the court to rule that under these circumstances the town would not be liable for defects in it. The court declined to so rule, and instructed the jury that when private parties construct a sidewalk within the limits of a highway, which has the character and general appearance of a public walk, so that thereby the public is justified in believing that they are invited to walk upon it as a part of the public way, and it is thus used for a series of years by the public, the town will be liable for defects in it the same as if the town had constructed it in the first place. We think this ruling was correct. We are not aware that this precise question has before been presented to this court; but it has been presented to other courts, and they have held that when a sidewalk has been built, no matter by whom or by what authority, and the municipal authorities have notice that it has become defective and dangerous to public travel, the municipality will be liable as though the sidewalk had been built by its express authority. Village of Ponca v. Crawford, 23 Neb. 662 (8 Am. St. Rep. 144) ; Hill v. City of Sedalia, 2 Mo. App. Rep’r. 1019. Am. Dig. July, 1896, p. 3829. And in the fourth edition of Shearman and Redfield on Negligence, § 366, the law is said to be that, where towns or other municipal corporations are declared by statute to be liable for defects in their highways, it is of no consequence that such defects were caused by third persons, so long as [138] the highway is thereby rendered defective within the meaning of the statute; that the .mere fact that they were created by third persons without its consent is no defense to the corporation. We think the ruling upon this point was correct, and well supported by authority. III. The defendants excepted to the admission of the plaihtifPs notice to the selectmen of the town, on the ground that it did not sufficiently describe the. location of the defect. The notice described the location of the defect as “ a hole in the sidewalk situated between Hotel Cleaves and Dunbar Brothers’ store upon town way in said town of Sullivan.” The evidence shows that the distance between the hotel and the store was three hundred and fifteen feet, — a fraction over nineteen rods, — and it is urged in defense that while this might be sufficient if the defect were described in such a way that it might be readily identified, it is not sufficient where the defect is described as a hole,” with no other description; and Chapman v. Nobleboro, 76 Maine, 427, is cited in support of this position. The notice in the case cited was substantially like the notice in this case; and the objection to it was substantially the same; and if the notice in that ease had been held to be insufficient, we think the same result must have followed in this case. But the notice was not. held insufficient in that case. It was held to be sufficient. And on the authority of that case, and the .reasoning by which the decision in that case was sustained, we think the same result must follow in this case. The fact must not be overlooked that the objection to the notice made at the trial in the court below was not to a want of accuracy in describing the defect or its location, but to a want of definiteness in stating its location. We think the location of the defect was stated with reasonable certainty, and that the objection to the admission of the paper to prove the statutory notice to the selectmen of the town of Sullivan was properly overruled. IV. Motion. The defendants ask for a new trial on the ground that the verdict is against evidence and the damages exces [139] sive. We do not think the request can be granted. The sidewalk was clearly defective. It was made of concrete; and there was a sunken place in it, the bottom of which was five and a quarter inches lower than the surrounding surface. The plaintiff calls it a hole. The defendants call it a depression. It is immaterial whether we call it a hole, a hollow, a sag, or a depression. It was a place dangerous to travelers using the walk during a dark and foggy evening. And we think the evidence was sufficient to justify the jury in finding that the municipal officers of the town had the statutory notice of the defect. The plaintiff was a comparative stranger. She had not passed over the walk for more than two years. The evening was dark and foggy. And there were no lights. And as she passed along on the walk, she stepped into this sunken place and was thrown down. .Her arm was broken, and she claims to have been otherwise seriously injured. The jury assessed her damages at three hundred dollars. Surely, such a verdict can not be regarded as excessive in amount. And we do not think it is so clearly against the weight of evidence in other particulars as to require the court to set it aside and grant a new trial. Motions and Exceptions overruled.