Dolan v. Charles J. Jacobs Co.

Pierce, J. Under a permit from the city of Boston, for the purpose of putting water meters in the houses numbered 89 and 91 on Morris Street, East Boston, the defendant during the day of November 9, 1911, dug two holes or trenches, each five feet square by about four feet deep, between the curbstone and the above named houses. The hole leading to number 89 was on the left of the front door of that house, while the one in front of number 91 was on the right of its front door. The jury could find that at the close of the day’s work the trench was left guarded by wooden horses placed on either side of the two holes; that the ends of the horses nearer the street rested upon a pile of earth excavated from the trenches, which had been made nearly flat by children playing upon it; that the ends near the houses rested at the sides of the trenches, but did not extend to the end of either trench and did not cover a space of eighteen inches or two feet between the inside end of the horse and the inside line of the hole. The jury also could find that there was a space of seventeen or eighteen inches between the inside line of the trench and the side of the house, and that this space was not barred or guarded on either end or on the side adjacent to the hole. They could find that the accident hereinafter described happened shortly before six o’clock, p. m., that it was dark and the place was a dark place; that a lantern was suspended from the middle of each inside horse, and that the lantern “was a red one, very dull color, all darkened and black;” “a dim red light.” The plaintiff lived at number 89 Morris Street. She left her house between five and six o’clock in the evening of the day in question, to go to a grocery on Putnam Street. In order to reach Putnam Street she had to pass directly into the street or by the house numbered 91 (which was on the right of number 89), over the space between the trench and the house. "She was an elderly [258] person, and it does not appear from" the record that she testified as to what course she took or that she was asked to do so. When returning from the store, as she passed along the sidewalk in the dusk of the early evening, her vision aided only by the dim red light of a lantern “all darkened and black,” suspended from the middle of a horse standing on the far side of the trench she was approaching, she saw, or reasonably might have thought she saw, that a way of at least three feet was reserved for travellers between the end of the barrier by the side of the trench and the house. She testified that when she fell she was on the sidewalk, coming from the store. “I was coming . . . and my foot went in ... I fell down. ... I was looking before me for fear I would get any stumble, but something ketched my dress, and I fell; I fell down.” She also testified that she saw nothing beforé her that she “examined with interest. I seen nothing only where I walked.” She thought there was a light. “It was away down in underneath me,” and “I did not gain much help by the light.” Without a lawful permit from the city the defendant was without right to obstruct public travel and the trench was a public nuisance. Commonwealth v. Boston, 97 Mass. 555. With the license the obstruction became a nuisance and the acts of the defendant became unlawful unless proper precautions were instituted and maintained to prevent accidents to travellers in the exercise of due care. Robbins v. Chicago, 4 Wall. 657. See Commonwealth v. Packard, 185 Mass. 64; Call v. Allen, 1 Allen, 137, 143. Upon all the evidence the jury could find that the plaintiff was in the exercise of due care. Weare v. Fitchburg, 110 Mass. 334. Kelly v. Blackstone, 147 Mass. 448. Torphy v. Fall River, 188 Mass. 310. They could find also that the defendant left the trench insufficiently guarded or lighted, and that as the direct consequence of its neglect the plaintiff received the injury of -which she complained. The direction of a verdict for the defendant was error. Exceptions sustained.