Blake v. City of Lowell

• Court: Supreme Judicial Court of Massachusetts
• Writing for the Court: DEVENS, J.
• Citation: Blake v. City of Lowell, 143 Mass. 296, 9 N.E. 627 (Mass. 1887)
• Decision Date: 07 January 1887
• Parties: BLAKE v. CITY OF LOWELL.

143 Mass. 296

9 N.E. 627

BLAKE v. CITY OF LOWELL.

Supreme Judicial Court of Massachusetts, Middlesex.

January 7, 1887

COUNSEL

G.T. Lawton and J.J. Pickman, for defendant.

The book admitted was not an official record required to be kept by law, but, so far as it appears, was a mere memorandum for the private use of the superintendent of streets. The defendant is not bound by the admissions against its interest, made by a police officer in the form of a narration. The evidence of the police officer should have been limited to a description of the condition of the walk based upon personal observation, and a record of the condition made by him. It does not appear that the place described by the police officer in the record is the place where the plaintiff is alleged to have sustained injury. See Donaldson v. Boston, 16 Gray, 508; 3 Greenl.Ev. c 4, §§ 483, 484; Buttrick v. Lowell, 1 Allen, 172; Billings v. Worcester, 102 Mass. 329, 330; Rooney v. Randolph, 128 Mass. 580; Hayes v. Cambridge, 136 Mass. 402, 403.

W.H. Anderson, for plaintiff.

The evidence of plaintiff's daughter was rightfully admitted, because the declarations were the expressions of present pain, and were not narrative of past feelings. 1 Greenl.Ev. § 102; Bacon v. Charlton, 7 Cush. 586; Jacobs v. Whitcomb, 10 Cush. 257; Palmer v. Crook, 7 Gray, 420; Hatch v. Fuller, 131 Mass. 576; Roosa v. Boston Loan Co., 132 Mass. 439, 440. The book of the police officer was properly admitted. It was a declaration of the defendant against its interest, and was only produced on notice from the plaintiff. The evidence offered by the defendant to show a rule of the police department was rightfully excluded. The existence or non-existence of such a rule would have no effect to control or limit the liability of the city to a person injured by a defect caused by ice and snow, and it could not affect the matter of notice. The ruling of the court as to the origin of the ice was sufficiently favorable to the defendant, and was correct. Billings v. Worcester, 102 Mass. 329; Fitzgerald v. Woburn, 109 Mass. 204; Stanton v. Springfield, 12 Allen, 571, and cases cited.

OPINION

DEVENS J.

The city of Lowell was responsible for the defect in its highway if it had reasonable notice thereof, or, by the exercise of reasonable care and diligence on its part, might have had such notice. Pub.St. c. 52, § 18. Such notice may be given to its officials, and the reasonable care and diligence which must be exercised is to be exercised by them. The book which was admitted in evidence was kept in the office of the city messenger, in the city government building, and had been thus kept from 1871 up to the time of the injury, which was of recent date. The printed headings on its pages indicated that it was kept for the purpose of entering complaints as to the condition of the streets, sidewalks, etc., and recording the time when such complaints were attended to. It was in evidence that the superintendent of streets had, in consequence of similar notices, repaired defects complained of. The object with which the book apparently was kept was that the city should receive notice of defects. Upon this book a policeman of the defendant city had entered a notice of the defective condition of the sidewalk a day previous to the occurrence of the plaintiff's injury, and it was properly admitted in evidence upon the question of notice. Whether the defect was the same, and the place of the injury the same, as that pointed out by the entry recorded, it was for the jury to determine. It does not appear, as defendant contends, that the book was admitted as a narrative of the condition of the way at the time it was made. The actual condition of the way was proved by other evidence, and no further weight appears to have been given to the book than that derived from its bearing upon the question of...