Tilton v. City of Haverhill

Loring, J. 1. The fact that the “white oak” cross-piece " 3i inches square ” into which the iron bars were run was so rotten on the morning after the accident (which was on February 1) that a witness " could pick it to pieces,” or, as the same witness described it, " simple [simply] rotten,” warranted a finding that it was rotten in the previous fall. The case comes within the class of cases collected in Young v. Snell, 200 Mass. 242. 2. Testimony was given by one of the plaintiff’s witnesses to the fact that the part of the frame which was rotten was underneath and there was nothing to contradict that; and we assume that the defendant was entitled to take the plaintiff’s case as one where the defect was not apparent on the surface of the grating. The defendant’s main contention is' that under these circumstances the case comes within Rochefort v. Attleborough, 154 Mass. 140; Stoddard v. Winchester, 154 Mass. 149; Brummett v. Boston, 179 Mass. 26; Miller v. North Adams, 182 Mass. 569. But we are of opinion that it does not come within the principle of those cases. What gave way in Rochefort v. Attleborough and in Miller v. North Adams was a culvert under a public way. In Stoddard v. Winchester a part of the public way in which a trench for a water pipe had been dug six months before gave way, and in Brummett v. Boston a sidewalk gave way. For limitations on this principle under the circumstances to which it was applied in the last two cases, see Stoddard v. Winchester, 157 Mass. 567, and Bingham v. Boston, 161 Mass. 3. What gave way in the case at bar was the grating over a 44 sewer drop.” One Gaudette, an employee of the defendant city in its street department (called as a witness by the plaintiff), testified 44 that it was a part of his duty to inspect sewer drops ; that they were inspected and cleaned in the spring and fall; that he had inspected this sewer drop and the grating here in question in the fall before the accident just before the ground froze; that at that time he found this sewer drop and grating in good [582] condition, and that it was then all right.” In addition the city engineer of the defendant city testified “ that he had seen grates where the top would be in good condition and the wood work beneath would be rotten, and it would be natural for the wood work to decay underneath, because that was where the water would naturally set, and that the bottom part was the part that ought to be watched.” The fact that the “ white oak ” frame was “simply rotten” on the first day of February warranted a finding that it would have been apparent if the inspection of the grating which the city made in the fall before the accident had been properly made. This warranted a finding that the defect here in question was one of which the defendant city by the exercise of proper care and diligence would have had notice. Exceptions overruled.