Crosby v. City of Boston

Colt, J. The injury of which the plaintiff complains was caused by the negligence of the owner of a private building in not providing a safe iron cover for one of the coal holes in the sidewalk in front of his premises. The accident was occasioned by imperfection in the cover and by want of security in its fastening., This may have been a defect in the street for which the city would be primarily responsible if by the other facts proved the city was brought within the statute conditions of liability. These require that the city have reasonable notice of the defect or that it. should have existed for twenty-four hours. It has been held that notice may be shown by proof that the proper officers of the city, whose duty it is to attend to municipal affairs, actually knew of it or with proper vigilance and care might have known of it. Howe v. Lowell, 101 Mass. 99. Donaldson v. Boston, 16 Gray, 508. Harriman v. Boston, 114 Mass. In this instance the specific defect which was the direct cause of the plaintiff’s injury had not existed for twenty-four hours. It was caused by the substitution of the imperfect cover in question for an old cover to the same hole. The case finds that instructions were given as to what would constitute notice sufficient to charge the city, which were not excepted to and are not reported. And the jury must have found either that the plaintiff was at fault or that there was no defect or no reasonable notice of it. The plaintiff’s requests for instructions could not have been properly given. Both assume that there was a previous defect in the old cover on account of its smooth and slippery surface, of which the city had notice, while the evidence only shows that two out of eight covers in front of the building in question were 74 smooth <md slippery, and fails wholly to identify which of '.hem was in that condition. There is nothing in the fact that a new cover was furnished for this hole, because new covers were furnished at the same time for the whole eight. The first request also erroneously assumes that the alleged defect in the old cover was the proximate cause of the injury, while the evidence is that it was caused by the imperfection of the new. The second instruction requested also contains the erroneous legal proposition that notice of one' defect is notice of any other that may arise in removing the first. This may be true when the last defect is the work of servants or agents of the city while employed to remove or repair the first. It cannot be so where the defect is caused by the act of a third party not standing in such relation. The fact of notice of the existence of the previous defect may have an important bearing on the question of notice, which was submitted to the jury, and must be presumed to have received due consideration. It is- not conclusive. Brooks v. Somerville, 106 Mass. 271. Exceptions overruled.