Dowd v. Inhabitants of Chicopee

Ames, J. In that class of cases cited by the defendant, in which the court has decided as a matter of law that the evidence failed to prove a defect in a way, the precise position and characteristics of the alleged impediment or obstruction were not matters of controversy. Thus in Raymond v. Lowell, 6 Cush. 324, it was held that a sewer grate, resting against 'the edge of the curbstone of a sidewalk and projecting an inch or two above it, was not a defect for which a person who chose to cross the street at that point, and in so doing tripped over the grate and fell, could recover damages. In Macomber v. Taunton, 100 Mass. 96 255, a post at the edge of the sidewalk, and not in the carriage path, was hold not to be a defect, it appearing that the carriage path was of ample width and in good repair. In the present case it was an open question whether the sewer plate was in a proper place ; some of the witnesses testifying that it was in the gutter and close to the edge of the sidewalk, while others described the way as substantially flat, without sidewalk or gutter, and said that the ordinary line of foot travel was over the covering plate. It is impossible for the court upon this report to say that it was not so situated and of such a character that a traveller using due care might be exposed to injury by stepping against it. The court therefore rightly submitted the question to the jury, and refused the first and second requests of the defendant. Ghenn v. Provincetown, 105 Mass. 313. Brooks v. Somerville, 106 Mass. 271. Upon the question of due care on the part of the plaintiff, the court was requested in substance to instruct the jury that the same rule is to be applied to children as to adults. This request was properly refused. The streets and highways are intended for the use of travellers generally, and boys of the age of this plaintiff have the same right to travel in them as persons of maturer years. It cannot be contended that a boy of fifteen, by reason of his youth, is an unfit person to be in the street without an attendant or guardian. “ If it was proper for him to be there it was only necessary for him to exercise such capacity as he had.” Lynch v. Smith, 104 Mass. 52. The rule which the defendant was entitled to insist upon as governing this branch of the case was that the plaintiff should be held bound to prove that he exercised that degree of care and attention which may fairly and reasonably be expected from boys of his age and capacity. Elkins v. Boston & Albany Railroad, 115 Mass. 190. This is substantially the instruction that was given, the only difference being that it refers to experience and ordinary practice as furnishing the test of what may properly be expected. As an answer to the specific point presented by the defendant’s request, it was all that the case required. . Exceptions overruled.