Welsh v. Inhabitants of Amesbury

Morton, J. The defendant requested the court to rule that the plaintiff was not entitled to recover, and to direct a verdict for the defendant. The court refused to do so, and the only question is whether the ruling which the defendant requested should have been given. We think that it should not have been, and that the ruling of the court was right. It was a question of fact for the jury whether, in view of all of the circumstances disclosed by the evidence, the plaintiff was in the exercise of due care. It cannot be said, as matter of law, that she was careless in being where she was, or in attempting to pass over the sidewalk in the condition in which it was, or that she assumed the risk in doing so. Gilman v. Boston & Maine Railroad, 168 Mass. 454. Calkins v. Springfield, 167 Mass. 68. Warren v. Boston & Maine Railroad, 163 Mass. 484, 488. McGuinness v. Worcester, 160 Mass. 272. Whether the sidewalk was in a defective condition, and whether the defendant had reasonable notice of the defect (if there was one) or with proper care and diligence ought to have known of it, were all questions of fact for the jury, who were entitled to consider the nature of the alleged defect, the amount of travel over the place where the accident occurred, its nearness to the business portion of the town, and such other circumstances as would tend to throw light on the questions at issue. Howe v. Lowell, 101 Mass. 99. Street v. Holyoke, 105 Mass. 82. Morse v. Boston, 109 Mass. 446. McAuley v. Boston, 113 Mass. 503. Harriman v. Boston, 114 Mass. 241. Bingham v. Boston, 161 Mass. 3. Exceptions overruled.