Burke v. City of Lynn

Sheldon, J. It is impossible to say that the evidence would not have warranted a finding that the plaintiff’s intestate was in the exercise of due care at the time of the accident. He was walking along the sidewalk in the usual way. It was a dark and rainy night. It does not appear that he knew of the existence of the alleged defect, and there was nothing but the darkness to call for any particular vigilance on his part. The effect of this circumstance was for the jury. That he must have been near the curbstone, or that his foot may have been over it when his toe hit the edge of the protruding stone, could not have been decisive against him. There was positive evidence that he was not under the influence of liquor. He had a right to rely somewhat upon an expectation that the sidewalk would be free from any dangerous defects. The case comes under the principles laid down in Woods v. Boston, 121 Mass. 337; Flynn v. Watertown, 173 Mass. 108; Franklin v. Worcester, 204 Mass. 22; Connelly v. Boston, 206 Mass. 4; O’Neil v. Chelsea, 208 Mass. 307. The defendant has not contended that there was not evidence of an actionable defect, of which the defendant might have had sufficient notice by the exercise of reasonable care and diligence. See Sawyer v. Newburyport, 157 Mass. 430; Lamb v. Worcester, 177 Mass. 82; Franklin v. Worcester, 204 Mass. 22. The notice to the defendant erroneously stated that the injury occurred on the westerly sidewalk of the street. It in fact occurred on the easterly sidewalk. But the rest of the notice was accurate and sufficient. The place was identified by the reference [304] to the property of Sullivan. The defect was, as it could be found, plainly visible on the sidewalk, and there was no such defect on the westerly sidewalk. No counter notice was given by -the defendant under the provisions of R. L. c. 51, § 22. The jury could have found on all the circumstances that there had been no intention to mislead in giving the notice, and that the defendant was not in fact misled. Liffin v. Beverly, 145 Mass. 549. Veno v. Waltham, 158 Mass. 279. Fuller v. Hyde Park, 162 Mass. 51. Coffin v. Palmer, 162 Mass. 192. There is nothing to the contrary of this in Tobin v. Brimfield, 182 Mass. 117, relied on by the defendant. The testimony of the defendant’s claim agent was not conclusive in its favor. The case should have been submitted to the jury; and the entry must be Exceptions sustained.