Woodcock v. City of Worcester

Holmes, J. The court might, in its discretion, reject evidence of the condition of the sidewalk as to ice a week before the accident happened, so far as offered to prove the condition at the time of the accident, even if, under special circumstances, it would have been warranted in admitting it. Berrenberg v. Boston, 137 Mass. 231. The witness called did not undertake to speak to the continuance of the same defect down to the moment of the accident, from daily observation, and, although the counsel for the plaintiff stated that he expected to prove by this and other witnesses that the defect had existed in substantially the same way for eight or ten days, yet in view of the plaintiff’s own testimony that, the day before the accident, snow fell to the depth of four or five inches, followed by rain and then by a thaw, we must take it that the intended proof was by way of inference from other testimony like that offered, which the court very properly considered too remote. The plaintiff argues that the evidence was admissible to prove notice. What we have said applies to this argument also, for the'notice to be proved must be notice of the same defect. Furthermore, the defence was not put on want of notice of the condition of the sidewalk, such as it was, but on a denial that the condition was defective. Exceptions overruled.