Barron v. Inhabitants of Watertown

DeCourcy, J. There was but meagre evidence that the public way at the place of the accident was not reasonably safe for travel; but we cannot say, as matter of law, that there was not sufficient evidence of a defect to be submitted to the jury. Mount Auburn Street in the neighborhood of the accident was apparently a much frequented business thoroughfare. The plan in evidence shows that about one and one half feet beyond the spot where the plaintiff fell the sidewalk turns at a right angle from the street line and runs back a distance of several feet to a store. The path made by a snow-plow overlapped the inner line of the sidewalk near the place of the accident from six to eight inches, thus bringing the edge of the concrete walk well within the path for foot travellers. There was testimony that the sidewalk at the place where the plaintiff fell was very ragged, rough and broken off, and that it appeared like an unfinished concrete sidewalk. This condition presumably was not due to ordinary wear but to water thrown from a spout near by, and to the frequent crossing of the concrete walk by teams going to and from the adjoining stable yard of one Kelley, which was about three inches below the street level. The jury [49] viewed the premises, which had not been changed since the time of the accident. On the whole we think that the issue of a defect was one for the jury. Gallagher v. Watertown, 197 Mass. 467. Howe v. Marlborough, 204 Mass. 26. The defendant contended that the concrete walk at the place of the accident extended about one inch beyond the limits of the street. But it was undisputed that the portion of the sidewalk where the alleged defect existed had been used by the public and had been wrought and maintained by the town since 1874 as a portion of the travelled part of Mount Auburn Street. Accordingly the town was bound to keep it in repair. Moran v. Palmer, 162 Mass. 196. Tilton v. Wenham, 172 Mass. 407. Bassett v. Harwich, 180 Mass. 585. That the alleged defect was the cause of the accident is not questioned by the defendant. Whether reasonable supervision by the officers of the town" who were charged with the care of the street would have disclosed, and whether reasonable diligence on their part would have remedied, the unsafe condition, as well as the issue of the plaintiff’s due care, were all questions of fact upon the evidence. The case was submitted to the jury with instructions that were apt, full and clear, and we discover no érror therein. The plaintiff was rightly allowed to recover the amount she paid for medical services. Under our statute creating municipal liability for defects in highways damages are given only for direct injury to the person and to property. Raymond v. Haverhill, 168 Mass. 382. But when the plaintiff sustained such direct bodily injury she became entitled to compensatory damages, including the expenses reasonably incurred in consequence thereof for medical treatment. Johnson v. Holyoke, 105 Mass. 80. Allen v. Boston, 159 Mass. 324. This is not a claim based upon consequential injuries sustained by one person as the result of a direct harm done to another, such as a husband may suffer following an accident to his wife, or a father as the result of an injury to his minor son. See Harwood v. Lowell, 4 Cush. 310; Nestor v. Fall River, 183 Mass. 265. Exceptions overruled.