Bingham v. City of Boston

Allen, J. The difficulty in this case arises from the form of the bill of exceptions, in which it is stated that “ for the defendant it appeared,” amongst other things, that all the details of the work of filling up the trench were properly done ; that “ the work was done right, and was a workmanlike job ”; and that “ the street at the point was then solid and firm for travel when the work was done,” which was about three or four o’clock in the afternoon of the day before the accident. If all this appeared as facts proved and not open to controversy, it is difficult to see any want of reasonable care and diligence on the part of the defendant in omitting to guard against the defect which certainly existed early the next morning. The only way to account for such defect the next morning would be some cause intervening after the completion of the work. But we are inclined to think that the-bill of exceptions is inaccurate in stating that these facts appeared, and that all that was meant is that there was testimony on the part of the defendant tending to prove them. So construing the exceptions, the jury might find that the condition of the street the next morning was sufficient to show that in point of fact the work of filling the trench was badly done; and, if badly done, that observation of the work while it was going on, or of the place afterwards, would show it to a skilled eye. Although the time which elapsed before the accident was short, we cannot say that by the use of reasonable care and diligence the proper officers of the city would not have known of the defect in time to remedy it. Stoddard v. Winchester, 157 Mass. 567 ; S. C. 154 Mass. 149. Stanton v. Salem, 145 Mass. 476. Hanscom v. Boston, 141 Mass. 242. We are confirmed in the above construction of the bill of exceptions by the statement in the defendant’s brief that all the evidence “ tended to show ” the above facts. Exceptions overruled.