Franklin v. City of Worcester

Hammond, J. This is a close case. Still a majority of the court think the evidence, although meagre, would warrant a finding that the stone into which the iron cover was set was worn so that the cover did not rest firmly upon it and was liable to be displaced when stepped upon in a certain manner; that the cover of the coal hole had been continuously in substantially this condition for two years before the accident to the plaintiff, and was dangerous to public travel, and that it was displaced by the plaintiff stepping upon it at the time of the accident. There was no evidence that during all that time the cover had been secured by any fastening. It fairly might be inferred also that there was considerable travel over the sidewalk where the accident occurred. Upon such findings and-conditions it could not be ruled as matter of law that the defendant might not have had reasonable notice of the defect by the exercise of proper care and diligence. The case is plainly distinguishable from cases like Hanscom v. Boston, 141 Mass. 242, and must be classed with cases like McGaffigan v. Boston, 149 Mass. 289, and Harrigan v. Worcester, 198 Mass. 354. ISTo citation of authorities is needed to show that the question of due care of the plaintiff was also for the jury. The ruling directing the verdict for the defendant was erroneous. In the opinion of a majority of the court the entry must be Exceptions sustained.