Aston v. City of Newton

C. Allen, J. The ruling that the notice was sufficient in form was correct. From the description which is given of the place which is complained of, it would seem that the grassed space between the gravelled sidewalk and that portion of the street which was wrought for a carriage-way was not adapted for the travel of those who merely had occasion to walk along the south side of Webster Street on the sidewalk; but in order to cross the street so as to reach Warren Avenue, or to cross from Warren Avenue to the south side of Webster Street, it would be necessary to pass over this grassed space, and, no path having been prepared by the city for this purpose, a diagonal path had been worn by use. Under the instruction of the court, the jury must have found [510] that this path had been known to and recognized by the city as a part of the wrought line of travel. Under this state of things, the circumstance that the city had not itself prepared the crossing at this place is immaterial. The crossing might well be established by long-continued public use, and there was nothing to show that the city had either made any other provision for crossing the street at or near that place, or had in any manner indicated, by barriers or otherwise, that the path as actually used was unsafe or unsuitable. It was virtually conceded, on the part of the defendant, that the water-box, in its condition at the time of the accident, was a defect, if the city was bound to keep the place where it was situated safe and convenient for travel. The requested instructions, therefore, were properly dealt with. Weare v. Fitchburg, 110 Mass. 334, 337. Whitford v. Southbridge, 119 Mass. 564, 574. Exceptions overruled.