O'brien v. City of Woburn

• Decision Date: 07 January 1904
• Citation: 69 N.E. 350,184 Mass. 598
• Parties: O'BRIEN v. CITY OF WOBURN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

184 Mass. 598

69 N.E. 350

O'BRIEN v. CITY OF WOBURN.

Supreme Judicial Court of Massachusetts, Middlesex.

January 7, 1904

COUNSEL

J. G Maguire and G. L. Mayberry, for plaintiff.

Francis P. Curran, for defendant.

OPINION

LATHROP J.

The plaintiff stumbled over a water shut-off in the sidewalk of Green street, in the defendant city, fell, and sustained personal injuries, for which she seeks to recover damages in this action. The shutoff was in the traveled part of the sidewalk, and extended above the surface thereof, according to some of the witnesses, from a half inch on one side to an inch and a quarter on the other side; and, according to other witnesses, it so extended an inch and a half on one side, and two inches on the other. It is not controverted that it was competent for the jury to find that this was a defect. Redford v. Woburn, 176 Mass. 520, 57 N.E. 1008.

To show that, considering the number of miles of street the defendant had to care for, and the amount available for the work, its failure to remedy the defect ought not to be regarded as a want of reasonable care and diligence on the part of the defendant, it put in evidence, without objection, the number of miles of streets in Woburn, the valuation of the taxable property, the amount of money that could be raised by taxation, and the amount appropriated and expended for highways. This evidence was competent. Rooney v Randolph, 128 Mass. 580; Hayes v. Cambridge, 136 Mass. 402; Id., 138 Mass. 461; Sanders v Palmer, 154 Mass. 475, 28 N.E. 778; Weeks v. Needham, 156 Mass. 289, 31 N.E. 8.

The only exceptions in the case are to two questions asked of two witnesses for the defendant by the plaintiff on cross-examination. Spencer, the superintendent of the waterworks of the defendant city, was asked whether the water department or the highway department took care of the shut-off boxes between the water mains and the premises of private takers, as to keeping them level with the sidewalk. The witness testified that the shut-offs were taken care of by the water department, and not by the highway department. The other question was put to the city treasurer, and was whether or not the water department of the defendant was not supported by water rates charged to water takers, and was not self-sustaining, and whether the income so received from the water department did not more than pay the expenses of said department. The witness answered in the affirmative.

We see no objection to these...