Burt v. Boston

• Decision Date: 07 March 1877
• Citation: 122 Mass. 223
• Parties: Charles F. Burt v. City of Boston
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

122 Mass. 223

Charles F. Burt v. City of Boston

Supreme Court of Massachusetts

March 7, 1877

Argued November 17, 1876

Suffolk. Tort for personal injuries sustained through an alleged defect in Boylston Street, in the city of Boston.

At the trial in this court, before Lord, J., it was in evidence for the plaintiff, that in July, 1873, he hired lodgings at No 35 Boylston Street, consisting of two rooms, up one flight of a Mrs. Knight, at the price of $ 8.50 a week, which included care of the rooms and fire; that he occupied the rooms from that time till February 22, 1874, the day of the accident, in part as lodgings and in part for the preparation and sale of a medicine; that the lower story of the house was occupied as a shop by an apothecary; that Mrs. Knight hired the remaining three stories of one Rice, occupying a part herself, and letting out the rest to lodgers by the week that Mrs. Knight had hired and occupied the same for about two years; that she had no lease; that Rice was to make all repairs, and had, within a year before the accident, repaired the chimneys and roof and other parts of the house; that the part hired by Mrs. Knight included a portion of the cellar and an excavation or vault extending from the cellar, under the sidewalk, and designed for getting in or storing coal; that she had used the vault for this purpose the first year she occupied the house, but since the plaintiff had come to the house, and for some months before, her coal and other fuel had been brought into the house by a back entrance, without being put into the cellar, and during this time the vault had not been opened or used at all; that a portion of the cellar belonged to the tenant of the apothecary's shop; that the plaintiff had never been in the cellar, and had no right or occasion to go there, and had no knowledge of the existence of the vault, except what he might infer from seeing the iron cover of a hole into the vault in the sidewalk; that he had nothing to do with the cellar or vault or the coal, his coal being brought to his room, and his fire made and attended to by Mrs. Knight; that the vault was some seven or eight feet deep and some five or six feet square, and extended from the cellar, under the steps leading from the house to the sidewalk, and under the sidewalk to within about eighteen inches of the curbstone; that three sides of the vault were built up with brick walls about four inches thick, to within two or three inches of the level of the sidewalk, the side toward the house being open; that upon these walls rested a single flagstone of slate color and formation, of the size of and covering the vault, and forming the sidewalk over it; that the stone had a bearing of about two inches in width upon the three walls, but was not supported on the side next the house; that in the middle of the stone was a coal-hole, with an iron cover, opening into the vault; that the stone had been there at least six years; that the upper surface was substantially level, but had become somewhat hollowed out in places, and that, for six months or more before the accident, there had been three or more cracks in the stone, visible on the upper surface, and extending from the coal-hole in the middle to the edges of the stone, one toward the steps and two towards the curbstone; that the cracks were filled with dirt, and were about one eighth of an inch in width, a mason testifying that in some places along the cracks one edge of the stone was about a quarter of an inch lower than the other, but, on cross-examination, that one would have to use a rule to find it out; that there was and had been no support for the stone except as above stated; that the stone was the whole width of the steps to the house, and there was no way for persons going into or coming out of the house except over this stone; that the plaintiff took his meals out of the house; that on Sunday evening, February 22, 1874, between eight and nine o'clock, he left his rooms to go out for his supper; that it was raining a little, and he stopped on the outer steps to spread his umbrella, and then stepped down upon this stone in the sidewalk; that he had taken but one or two steps upon it, when the stone broke and he fell through to the bottom of the vault, and was hurt by the fall and by the pieces of the stone falling upon him; that the stone broke along...