Olson v. City of Worcester

Morton, C. J. By the existing statutes, a town or city is liable for an injury caused by a defect in a way, if the injury might have been prevented by reasonable care and diligence on the part of the town or city, and if the town or city had reasonable notice of the defect, or might have had notice thereof by the exercise of proper care and diligence on its part. Pub. Sts. e. 52, § 18. The degree of diligence required of officers of a town or city, in watching the way and guarding against defects, depends in some measure upon the character of the way. If there are known causes in operation likely to produce a defect in the way, the diligence required is greater than might be sufficient under other conditions. It is reasonable that the officers should keep a more watchful eye over such a way in order to guard against danger. When, therefore, a defect is produced by some known, permanent cause which would naturally create the defect, the existence of such cause may properly be considered by the jury in determining whether the officers of the town or city might have had notice of the defect by the exercise of proper care and diligence. Post v. Boston, 141 Mass. 189. In the case at bar, the defect was a ridge of ice extending over the sidewalk from the outlet of a water conductor upon a building adjacent to the sidewalk, which emptied its water upon the [538] sidewalk, and which had been there for a long time. The conductor was likely to produce the defect complained of; and the court rightly ruled that the jury might take into consideration the existence of the conductor, in connection with the time the defect had existed, as bearing upon the question whether the city had notice, or might have had notice, of the defect by the exercise of proper care and diligence. Exceptions overruled.