White v. City of Boston

• Decision Date: 04 May 1877
• Citation: 122 Mass. 491
• Parties: Cornelius S. White v. City of Boston
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

122 Mass. 491

Cornelius S. White v. City of Boston

Supreme Court of Massachusetts

May 4, 1877

[Syllabus Material]

Suffolk. Tort for personal injuries caused by a defect in Warren Avenue, in that part of Boston, formerly Charlestown. Trial in this court before Lord, J., who, after a verdict for the defendant, reported the case for the consideration of the full court in substance as follows:

The plaintiff testified, that on October 12, 1874, he came to Boston on business, from Portland, Maine, where he then resided; that, on the evening of the following day, he went in a street-railway car to Charlestown, and started at about nine o'clock in the evening to return to Boston, on foot that he was familiar with the way, having, prior to February 1874, lived several years in Charlestown, but had not passed over Warren Avenue for eight months before that evening; that he entered Warren Avenue from City Square, taking the sidewalk on the easterly side of the avenue, and, as he did so, he saw a wooden horse with a lantern attached to it, standing across the road-bed of the street within a rod or two of the entrance from the square, and at the same time noticed that the street was being repaved; that there was no guard or barrier of any kind across the sidewalk, and he supposed the guard across the road-bed was intended solely to prevent the passage of vehicles; that he walked along, at his ordinary gait, looking ahead of him, seeing no obstruction or anything that suggested to him any danger in proceeding, and perceiving nothing unusual or peculiar in the condition of the sidewalk; that when he arrived at the crossing of the Fitchburg Railroad, which crosses Warren Avenue at right angles on a level grade, he stepped, from the end of the sidewalk abutting on the track, into a trench or excavation, and fell headlong, striking upon his face against one of the rails of the track, receiving the injuries complained of.

On cross-examination he testified, that, when he entered the avenue, he understood, from seeing the horse and light across it, that the avenue was undergoing repairs, and was closed to travel, but that he supposed the repairs were on the road-bed only, and that he did not look particularly to see whether the sidewalk was being repaired, and did not see any such repairing, but walked along as he ordinarily would upon any sidewalk, looking ahead; that he knew that, when a horse and light were put across one end of an avenue, it was customary to put another horse and light at the other end, to inclose the place shut off from travel, but that he did not look for any such horse or light, or see the horses and lights, hereinafter mentioned, across Front Street or in the street he was walking upon, on the other side of the railroad track; that there was no bend in the road, or anything to obstruct his view, so far as he knew, of the latter lights; and that when he stepped off the sidewalk, he did not look to see whether there were any lights ahead.

The following facts also appeared from evidence introduced by the plaintiff: The excavation was about twenty inches deep extending in a continuous line with the easterly sidewalk, under and between the rails of the track, from the end of the sidewalk abutting on one side of the track to the end of the sidewalk abutting on the opposite side of the track. The excavation was made a day or two before the accident happened, in the course of the repairs of the street, but by whom made, or for what purpose, did not distinctly appear. The street lamps were all lighted, and there was one at a distance of fifty feet from the place of the accident. The nearest guard of any kind was a wooden horse with a...