Bailey v. City of Cambridge

Hammond, J. In order to recover it was necessary for the plaintiff to prove, among other things, not only that the way when bare was defective, but also that the accident was due, in part at least, to the operation of this defect as such. Newton v. Worcester, ante, 181. The court so instructed the jury, giving in substance the first ruling requested, and adding thereto the following: “ You must be satisfied that the injury which she received arose from such defective way or condition.” The defendant insists that this instruction was so mystified and qualified by the succeeding parts .of the charge as to destroy the effect of the ruling. Without herein reciting the parts of the charge alluded to it is sufficient to say that we see no just ground for such criticism. These principles were stated to the jury with sufficient clearness and fullness. There was no occasion for the second request. In the notice given by the plaintiff to the city the cause of the accident was stated to be “ a defect or want of repair . . . consisting of a ridge or mound of earth with uneven and slanting sides, said ridge or mound being covered with snow and ice, and in a dangerous, slippery, and unsafe condition for travel.” The declaration describes the defect as “ ridge of earth,” and avers that the defective condition “ was aggravated by reason of said ridge of earth and the sides thereof being covered with snow and ice.” At the trial the plaintiff relied upon such a defect and no other, and under the instructions of the court the jury must have found the existence of such a defect. The matter contained in the third request was sufficiently covered by the instructions given under the first. The court rightly declined to give the fourth ruling requested. It is not a correct statement of the law. [197] The question in these cases is not whether the accident would have happened if the ground had been bare, but whether, there being a defect in the bare ground, the accident was due wholly or in part to such defect as an operating cause. Newton v. Worcester, ubi supra. As to the last request we are of opinion that whether the way when bare was defective, and whether the accident was wholly or partly caused by this defect, were questions for the jury. We do not understand that the defendant contends that as to all the other material parts of the case there was not evidence upon which the plaintiff had the right to go to the jury. Exceptions overruled.