Marvin v. City of New Bedford

• Decision Date: 07 March 1893
• Citation: 33 N.E. 605,158 Mass. 464
• Parties: MARVIN v. CITY OF NEW BEDFORD.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

158 Mass. 464

33 N.E. 605

MARVIN v. CITY OF NEW BEDFORD.

Supreme Judicial Court of Massachusetts, Bristol.

March 7, 1893

The evidence in regard to the defect was substantially as follows:Purchase street is a public way in New Bedford, near the center of the city. The sidewalk is covered with flagging, extending from the line of the stores to the curbing, a distance of about 10 feet. It has been in substantially its present condition for more than five or six years.One of said flaggings had a hole in it nearly circular in form, 51/2 inches in diameter from north to south, and 6 inches from east to west. The direction of the street was from north to south. This hole was in the flagging when it was laid. It had originally been filled in by the city with dirt, but, by the sweeping of the sidewalk from time to time by the abutters, the dirt had been partly swept out; so that at the time of the injury it was about an inch in depth at the edges, and somewhat deeper in the middle, the surface being saucer shape; one witness testifying that the hole was from an inch and a half to two inches in depth. The hole was about 16 inches from the edge of the curbing. It was not in the line of the main travel on the sidewalk, excepting when the sidewalk was unusually crowded. This street was largely resorted to for travel, especially upon Saturday evenings. Witnesses testified without contradiction that from one to three thousand people passed over the place from 7 o'clock to 9 o'clock every Saturday evening. Plaintiff was injured upon Saturday evening, about half past 7, and, at the time of her injury, was passing with many other people, exercising due care, upon said sidewalk, and caught her toe in the hole, and was thrown down. Edwin A Boomer was called as a witness by the city, and testified that he kept a store nearly adjacent to that part of the sidewalk which contained the hole referred to, and that he had known the place for five years. The city solicitor asked the witness this question: "Did you ever know of anybody suffering any injury by reason of that depression?" This question was objected to by the plaintiff's counsel. The city solicitor said that he proposed to show that the witness had never known of any accident happening from that hole. The court excluded the question, and the defendant excepted to the ruling. Albert B. Drake was called as a witness by the city, and testified that he had entire charge of the repair of the streets, and had had for some years. He also testified that he had visited a great many of the cities of the commonwealth, and had observed their streets and sidewalks with a view to observing their condition as compared with that of the sidewalks in New Bedford, and thereupon the following question was put to him: "Whether it is common to find, in your experience among the cities that you have visited, depressions in the sidewalk caused by irregularities in the paving or covering large enough to admit a portion of the foot,--the foot of an ordinary adult." The plaintiff objected to this question, and it was excluded by the court. The city excepted to this ruling. The following questions were put to him by the city solicitor: "Is it an infrequent thing to find depressions to exist between flaggings in different parts of the city?" "Is it common for depressions to be found in flagged sidewalks large enough to insert part of the foot?" Both of these questions were objected to by the plaintiff, and were excluded by the court, to which rulings the defendant duly excepted.

COUNSEL

E.L Barney, for plaintiff.

Thomas F. Desmond, (H.M. Knowlton, of counsel,) for defendant.

OPINION

LATHROP J.

1. The jury were warranted in finding that the hole in the sidewalk which caused the injury to the plaintiff was a defect for which the defendant was responsible, under Pub.St. c 52, § 18;^[1] and the court below properly refused to rule, as matter of law, that no defect had been shown. Street v. Holyoke, 105 Mass. 82; Ghenn v. Provincetown, Id. 313; Loan v. Boston, 106 Mass. 450; Gerald v. Boston, 108 Mass. 580; George v. Haverhill, 110 Mass. 506; Dowd v. Chicopee, 116 Mass. 93.

2. The question put to Boomer was properly excluded. It is not competent in a case of this kind for the plaintiff to show that another accident has previously happened at the place of the alleged defect, for the purpose of showing that the place is defective. Collins v. Dorchester, 6 Cush. 396; Blair v. Pelham, 118 Mass. 420. Nor is it competent for the defendant to show that no accident has previously happened there. Aldrich v. Pelham, 1 Gray, 510; Kidder v. Dunstable, 11 Gray, 342; Schoonmaker v. Wilbraham, 110 Mass. 134. To admit such testimony would raise a collateral issue, which would have no legitimate bearing on the principal fact in dispute. The defendant contends that the evidence was admissible on the question whether the defect might have been remedied by the exercise of reasonable care and diligence on the part of the town. This hole in the flagging existed when the flagging was laid, five or six years before the...