Fleming v. City of Springfield

Morton, J. 1. If the exceptions raise any question regarding the notice, none was brought to the attention of the court at the trial, and the defendant has not argued any such question to us. It would have been too late to raise it here, and the defendant must be deemed to have waived it if there was one. Talbot v. Taunton, 140 Mass. 552. 2. The testimony of Dr. Rice was properly admitted. The statement made by the plaintiff purported to be a description of his symptoms at the time it was made, and not a narration of something that was past; and it may be fairly inferred that it was made for the purpose of medical advice and treatment. At any rate, although it was only a day or two before, or possibly during the trial, it does not appear that such is not the case. Barber v. Merriam, 11 Allen, 322. 3. We also think the case was properly submitted to the jury on the question of the defendant’s liability. The injury was caused by a defect in a way which the defendant was bound to keep in repair. The question was whether the defendant did or did not fail to use reasonable care and diligence in preventing the defect. The accident occurred in consequence of the washing out of the earth under the surface of the road-bed, and that was due to the escape of water through a defective sewer-pipe. There was evidence that the pipe which was put in was “a very cheap grade of cement, and good for nothing,” and that the effect of [523] such soil as that in which it was laid was to eat it up in from three or four to nine or ten years, that it was put down in 1885, and that the defendant’s superintendent of streets was told at the time by a witness that he did not think the pipe was right or would stand it. There was also testimony tending to show that, about four or five months before the accident, a depression came in the street over the pipe, about fifty feet easterly of the place of the accident, which was filled up by the defendant without making any examination ; and that on another occasion, about a fortnight before the accident, a break came in the way at a point about twenty feet east of the place of the accident, and that the city dug down there, and took up and replaced all the pipe which appeared to be defective, and examined the projecting ends of the pipe that was left, and found them all right; but it does not appear that it made any further examination. There was also testimony tending to show that the pipe was dug up after the accident at the place of the accident, as well as at the place where the depression and break had occurred, and found to be in bad condition and full of holes. It was for the jury to say, upon this evidence, whether the defendant had exercised reasonable care and diligence in keeping the way in repair. The knowledge of the superintendent of streets was its knowledge, and it was for the jury to decide whether, in view of that fact and of the depression and break which had occurred in the way so short a time before, and so near to the place of the accident, the defendant had not reason to apprehend the danger and to guard against it. The jury, under instructions as to the obligations of the defendant to which no exception was taken, have decided the question adversely to the defendant, and we think there was evidence to warrant their finding. Post v. Boston, 141 Mass. 189. Exceptions overruled.