Rockwell v. McGovern

Morton, J. There was evidence warranting a finding that the plaintiff was in the exercise of due care. She was a traveller upon the highway with nothing in the apparent conditions of the sidewalk to call for anything more than ordinary care on her part, and it could be found and must have been found that she was exercising the degree of care required of her. There was also evidence which warranted a finding that the accident was caused by the negligent manner in which the defendant had refilled the excavation and in which he had relaid the brick. There was evidence warranting the jury in finding that if the excavation had been properly filled and the brick . properly laid the accident would not have happened. The case was especially one for the application of the doctrine of res ipso loquitur. For a statement, of the doctrine, see Thomas v. Boston Elevated Railway, 193 Mass. 438, 440. ■ Evidence of the “ slide ” or “ cave in ” which occurred in the summer was admissible as tending to show the nature of the soil and as bearing in that way upon the degree of care required in refilling the excavation. We do not construe the declaration as alleging that the defendant was engaged in the work of excavation at the time of the accident, but as meaning that at some time he had been, so engaged and had so negligently carried on the work as to permit the sidewalk to drop and that the plaintiff fell into the hole thereby caused. So construed, there was no variance between the pleadings and the proof. Exceptions overruled.