Bennett v. City of Everett

Sheldon, J. There was sufficient evidence to be submitted to the jury of the plaintiff’s due care. Looking at the state of facts then existing, considering the'things which she saw and the inferences which she ought to have drawn from them, the jury were warranted in finding this issue in her favor. Indeed, the counsel for the defendant has made no argument against this proposition. So far as it depends upon this part of the case, the defendant’s exceptions cannot be sustained. Leonard v. Boston, 183 Mass. 68. O'Neil v. Hanscom, 175 Mass. 313. Fox v. Chelsea, 171 Mass. 297. McGuinness v. Worcester, 160 Mass. 272. Norwood v. Somerville, 159 Mass. 105. It is not denied that there was evidence of an actionable defect in the sidewalk; but it is earnestly contended that there is no evidence that the defendant had notice, or by the exercise of proper care and diligence might have had notice, of the alleged defect. The defect consisted of a trench dug across the sidewalk of a public street. The defendant had issued a permit to dig the trench a day or two before the accident. The actual digging began on the morning of the first day of September; [368] and the accident occurred about half past eight o’clock in the evening of the same day. The work to be done under the permit would create of necessity a dangerous defect in the street and sidewalk. It is not a violent presumption that the officers having charge of the streets would have early notice of the issuing of such a permit. The jury also had a right to consider whether this defect, a trench dug transversely across the sidewalk, was not of such a nature that the defendant’s officers would have been likely to receive immediate notice of its existence. Harriman v. Boston, 114 Mass. 241. Donaldson v. Boston, 16 Gray, 508. The place of the accident was within four or five minutes’ walk from the defendant’s city hall, in the centre and business part of the city. It cannot be said that the only defect was a failure to guard the trench by lights or barriers. The trench itself constituted a defect in the sidewalk, though under the circumstances the city would not be liable for the existence of this defect if it used proper care to protect the public against the danger by sufficient barriers. Torphy v. Fall River, 188 Mass. 310. We are of opinion that this question also properly was submitted to the jury. Welsh v. Amesbury, 170 Mass. 437, 440. As the issues already stated appear to have been found in favor of the plaintiff, the defendant’s liability depends upon whether reasonable care had been used to protect the public by barriers against the excavation which had been temporarily made. Jones v. Collins, 188 Mass. 53, and cases there cited. The way had not been actually closed to public travel; but a trench had been opened in the middle of the street, running thence across half of the street and the whole of the sidewalk in question. The duty accordingly devolved upon the defendant of putting up proper fences or barriers to guard against the danger thus created; and if it chose to delegate the duty to Henderson the drain layer, it could be liable to any one injured by his negligence in this respect. Blessington v. Boston, 153 Mass. 409. Ho question is raised as to the sufficiency of the lights put up in the driveway; but there is contradictory evidence as to the situation of the two pieces of drain pipe placed by Henderson, one on each side of the trench, whether they were in [369] the middle of the sidewalk or close to the curbstone, and as to the character and extent of the ridge of earth thrown up on the sidewalk. There was no question that no light had been placed on the sidewalk upon the side from which the plaintiff approached the trench. Without going over the evidence, we think that the jury might have found that the plaintiff reasonably supposed the lights about the trench to be merely a signal for teams not to come into the street; that when she came to the trench she saw merely a pile of earth thrown up, extending from the middle of the sidewalk to the curbstone; that the lantern on the other side of the trench was burning dimly, that her view was obscured by the thick branches of a tree and a building; that she saw no piece of drain pipe or other barrier; that there was no real barrier across the sidewalk, and no sufficient warning that an excavation had been carried across the sidewalk; and that she was justified by the appearance of things in thinking that she could walk safely between the pile of earth and the fence which marked the outer limit of the sidewalk. See Leonard v. Boston, 183 Mass. 68, in which the circumstances were almost the same as in the case at bar. We think that this question was for the jury. White v. Boston, 122 Mass. 491. Jones v. Collins, ubi supra. McMahon v. Boston, 190 Mass. 388. There were no such barriers here as in Martin v. Chelsea, 175 Mass. 516, or in Butman v. Newton, 179 Mass. 1. No other questions have been raised before us. Exceptions overruled.