Campbell v. City of Boston

• Citation: 75 N.E. 96,189 Mass. 7
• Parties: CAMPBELL v. CITY OF BOSTON.
• Decision Date: 07 September 1905
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

189 Mass. 7

75 N.E. 96

CAMPBELL v. CITY OF BOSTON.

Supreme Judicial Court of Massachusetts, Suffolk.

September 7, 1905

COUNSEL

Elisha Greenwood and F. J. Horgan, for plaintiff.

Saml. M. Child, for defendant.

OPINION

BRALEY J.

The proximate cause of the accident to the plaintiff was not the uneven depression in the sidewalk over which he was passing as a traveler, but arose rather from the sudden settling of the foundation underneath the surface. If this had remained firm, he would not have been injured. Under the provisions of Rev. Laws, c. 51, § 18, a city or town is required to keep its public ways in suitable repair for the convenient use of travelers. It is made liable for injuries received from defects, whether visible upon the surface or concealed within the roadbed, if it has had notice, or in the exercise of reasonable diligence should have known of their existence and has failed to remedy them. While the plaintiff knew of the gradual sinking of the sidewalk and enlargement of the depressed area for at least a year, it had not further given way under constant use by himself and other travelers. If from observation, he might have inferred that there was a probability of its being insufficiently supported, it also could be said that an inference might have been drawn that the bricks of which it was built had settled from constant travel. The street was in general use, which afforded to him some measure of belief that it was not dangerous. Besides, he was not required to make an examination to see what lay beneath, but might rely upon the presumption that, if not reasonably safe, the defendant would have made the necessary repairs, or in some proper manner have warned travelers that it was dangerous.

Knowledge by the plaintiff of the existence of defective conditions in the public way he was using had an important bearing upon the question of his negligence. 'But a man does not take the risk of any danger which may arise from certain causes merely because, in a general way, he is aware of the existence of those causes.' Powers v. Boston, 154 Mass. 60, 63, 27 N.E. 995, 996. What inferences, whether of care or of negligence, should be drawn from his knowledge and conduct, were matters of fact for the jury. Weare v. Fitchburg, 110 Mass. 334; George v. Haverhill, 110 Mass. 506; Kelly v. Blackstone, 147 Mass. 448, 18 N.E. 217, 9 Am. St. Rep. 730; Norwood v. Somerville, 159 Mass. 105, 33 N.E. 1108; Torphy v. Fall River (Mass.) 74 N.E. 465. There was some evidence that the cellar wall of the building on which the sidewalk abutted was thin, and suddenly gave way, causing the subsidence. But, if this was negligence of the owner in not providing a more substantial wall, which is not shown, his neglect would not relieve the defendant from its primary duty, or furnish a bar to the maintenance of the suit. Bacon v. Boston, 3 Cush. 174; Burt v. Boston, 122 Mass. 223.

The defendant's principal defense, however, is that because of the hidden character of the defect, and until disclosed by the accident itself, the city in the performance of its statutory duty could not, by using reasonable care, have discovered or guarded against it. Ordinarily what constitutes reasonable diligence in the performance of the duty imposed upon the defendant is a question of fact, to be determined from all the circumstances. Olson v. Worcester, 142 Mass. 536, 8 N.E. 441; Comerford v. Boston, 187 Mass. 564, 73 N.E. 661. But there are cases where this may be a question of law. Thus it has been decided that in the absence of proof of actual notice, or of faulty construction, or repairs, and where no surface indications existed showing a want of unfitness of a public way, or, if present, they had existed for so short a time as not to furnish any ground for holding that the city or town should be held to have impliedly known of the defect, no liability attaches. Hanscom v. Boston, 141 Mass. 242, 5 N.E. 249; Rochefort v. Attleborough, 154 Mass. 140, 27 N.E. 1013, 26 Am. St. Rep. 221; Stoddard v. Winchester, 154 Mass. 149, 27 N.E. 1014, 26 Am. St. Rep. 223; Brummett v. Boston, 179 Mass. 26, 27, 60 N.E. 388; Miller v. North Adams, 182 Mass. 569, 66 N.E. 197. See, also, Burke v. Haverhill, 187 Mass. 65, 72 N.E. 256.

Upon recurring to the evidence, much testimony is found that for at least a year this part of the sidewalk, while enlarging in area, had been slowly sinking and wearing deeper, until its condition had become distinctly noticeable. The bricks had been pressed down around the outer edge, and it could have been found that this created...