Griffin v. City of Boston

Barker, J. We think the case should have been submitted to the jury. 1. There was no evidence- that the plaintiff voluntarily or by his own act came in contact with any portion of the heater, or that there was any circumstance which ought to have indicated to him that the tongue or handle would fall. It was proper for him to be in the highway and to cross it where he attempted so to do. Therefore he might have been found to be a traveller exercising due care. 2. Inanimate objects resting upon the surface of a properly wrought way, if of a nature to endanger travel,- have been held to make the way defective whether put in place by some agency [411] of the municipality charged with the care of the way (Bigelow v. Weston, 3 Pick. 267, Pratt v. Cohasset, 177 Mass. 488) by an individual owner of the soil, (Snow v. Adams, 1 Cush. 443,) or by one having some other qualified right in connection with the way, (Hayes v. Hyde Park, 153 Mass. 514.) See Barber v. Roxbury, 11 Allen, 318, 320; Maccarty v. Brookline, 114 Mass. 527; Pratt v. Weymouth, 147 Mass. 245. But if when the injury is done the obstacle which constitutes the defect is in use and the acts of persons who are using it contribute to or are the moving cause of the injury the statutory liability cannot be enforced. Barber v. Roxbury and Pratt v. Weymouth, ubi supra. In the present instance the heater with its tongue held up by a rotten and unsafe wire was ,an obstruction on the way which made travel unsafe. It was not in use, and no act of any person tended to cause the tongue to fall. The evidence tended to show that the heater had been left in the same place, next the curbing, unused for more than a week and in the'same condition in which it was when the plaintiff attempted to pass near it. This would justify a finding that it was a defect and that the defendant was answerable under the statute for the injury which the plaintiff sustained because of the fall of the tongue upon him. See Chase v. Lowell, 151 Mass. 422, 425. Exceptions sustained.