Myers v. City of Springfield

Ames, J. The instructions which the defendants requested the court to give to the jury were in substantial conformity to the decision of this court in Doherty v. Waltham, 4 Gray, 596. The rule given in that case would, in most cases of the kind, be practically all that would be necessary upon that particular point. But it does not follow that it would be sufficient-for every case [491] which can arise of this peculiar liability. There can be no doubt, in case of an excavation in a public way, that it would be the duty of a town not only to erect suitable barriers for the security of the traveller, but also to take all reasonable and proper care to maintain the barriers so erected; and the question as to what degree of care is reasonable depends on the special circumstances of each case. It is easy to suppose a case in which, in the language of the judge at the trial, provision ought to be made for receiving notice in case they should be removed. In case of a dangerous excavation in the sidewalk in one of the most crowded thoroughfares of a populous city, the throng of passengers might be so great and so continuous during the first half of the night, that the chance of disturbance of the barriers by accident or recklessness, or even by the wilful misconduct of mischievous persons, might be such as to require some extra precaution on the part of the city authorities. It might be, under some circumstances, that the mere erection of a barrier, and then leaving it to itself without any oversight, or without having it occasionally visited, would not be all that was required by a reasonable regard for the safety of travellers. As we understand the instructions given by the court to the jury, the “ sufficient barrier,” therein spoken of, does not mean one which should be absolutely safe under all contingencies, but one which would be sufficient if not thrown down or removed. If the risks to which it was exposed, and the amount and nature of the travel over the sidewalk, were such as to create a substantial and practical danger that the barrier, although originally sufficient, might be thrown down or displaced by accident or design in the course of the night, it would be the duty of the defendant to take some precaution that notice of its actual condition from time to time should be conveyed to some city officer without delay. It was left to the jury to say on the evidence whether this case furnished ■an instance of that kind, and their verdict is that it did so. We therefore must hold the ruling to have been correct, and the Exceptions are overruled.