McGaffigan v. City of Boston

Field, J. The city is required to keep its streets reasonably safe and convenient for travellers, (Pub. Sts. c. 52, § 1,) and is liable in damages for any injury received through a defect in a [293] street which might have been remedied by reasonable care and diligence on its part, if it had reasonable notice of the defect, or might have had notice of it “ by the exercise of proper care and diligence.” Pub. Sts. c. 52, § 18. The city of Boston by its ordinances authorizes the board of aldermen to permit the construction of coal-holes under the streets, and to prescribe the manner in which they shall be constructed and covered. Revised Ordinances of 1885, c. 28, §§ 16, 17. It does not appear that the covers of coal-holes cannot be so constructed that they will not slip off or turn up, in any ordinary use of the streets, even if they are not fastened down on the inside. It may be impracticable for the city, if it permits coal-holes in the streets at all, to guard against the possibility of the coal-holes being left open, but it is not shown to be impracticable for the city to require a covering of such a kind that when the cover is shut the street is reasonably safe although the cover is not fastened on the inside. In Hanscom v. Boston, 141 Mass. 242, “ there was no evidence that the coal-hole and cover were improperly constructed, or that there was anything in the appearance of the coal-hole or cover that indicated any defect, or that it had ever before been out of place, and no evidence that the officers of the city had any knowledge that the cover was not fastened down on the inside.” And the court held that there was no evidence that the city had reasonable notice of any defect, or might have had notice of it, or might have remedied it, by the exercise of reasonable care and diligence. In the case at bar thei'e was evidence that the cover was loose, and that the stone into which it was fitted was “ rounded underneath,” so that the cover would “ balance and tip up,” or turn over when stepped on; that this was apparent from the street, and that, although the cover would be secure if fastened by a broomstick or bolt on the inside, it was usually left unfastened ; and that this condition of the coal-hole and cover liad existed for a considerable time, and was known to a police officer of the city who had “ reported it at the station.” We think that this was evidence of a defect of which the city might have had notice by the exercise of proper care and diligence, even if the knowledge of the police officer was not in itself [294] notice to the city, upon which we express no opinion. See Donaldson v. Boston, 16 Gray, 508; Post v. Boston, 141 Mass. 189; Blake v. Lowell, 148 Mass. 296. The fact that, half an hour before the plaintiff was injured, “ the coal-hole cover had been removed for the purpose of taking in coal through the hole by an occupant of the premises having the lawful use of the same, and that the cover was replaced by the person putting in the coal, who neglected to fasten it on the inside,” is not conclusive against the right of the plaintiff to maintain her action. The evidence was that the defect in the condition of the coal-hole and cover was permanent, and the neglect of the occupant of the premises to fasten the cover on the inside was habitual, and it does not appear that the person putting in the coal did not leave the coal-hole as securely covered as he found it. We see no error in the rulings and instructions of the court, and we cannot say, as matter of law, that a new trial should have been granted. Exceptions overruled.