Cannon v. Inhabitants of Town of Brookline

• Decision Date: 29 June 1926
• Parties: CANNON v. INHABITANTS OF TOWN OF BROOKLINE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

256 Mass. 468

152 N.E. 752

CANNON

v.INHABITANTS OF TOWN OF BROOKLINE.

Supreme Judicial Court of Massachusetts, Norfolk.

June 29, 1926.

Exceptions from Superior Court, Norfolk County; G. A. Flynn, Judge.

Action of tort by Mary Cannon against the Inhabitants of the Town of Brookline to recover for injury on a board sidewalk. Finding for defendant, and plaintiff excepts. Exceptions overruled. Judgment for defendant.

J. H. Kenney, of Boston, for plaintiff.

C. C. Cabot, of Boston, for defendant.

WAIT, J.

The plaintiff was injured while walking in daylight upon a board sidewalk in Brookline by driving a splinter from the walk through the sole of her shoe and into her foot. She contends that her injury resulted from a defect in the way for which the town is responsible under G. L. c. 84, § 15.

The jury could have found from the evidence that the sidewalk had been in place without repair for, at least, five years, and possibly for seven years. It extended from Highland road for a considerable distance along High street on the side opposite to the house in which the plaintiff lived. It was made by placing five planks, fom eight to eleven inches wide, side by side, lengthwise. At the place of the accident one plank was ‘rough and splintery,’ the wood ‘dark and decayed,’ and ‘there were little pieces sticking up about a half inch or more in a section of about two feet of the plank.’ The planks were somewhat worn at the edges along the spaces between them. The jury took a view of the place. Photographs taken shortly after the accident showed a walk with, plainly to be seen, a few thin flakes of wood projecting upward from the surface of the planks where the grain had been worn by use and by the action of sun and rain. The splinter which injured the plaintiff punctured the thin sole of her shoe and went into her foot for an inch and a half. This shows the meaning to be given ‘rotten’ as used by the plaintiff's witnesses in describing the wood. Decayed and crumbling wood, really rotted, would not be strong enough so to pierce shoe and foot.

The characterizations of the place by the witnesses for the plaintiff as ‘in bad condition right along,’ ‘in poor condition,’ ‘defective condition,’ ‘kind of bad-looking spot there,’ and by the superintendent of streets, called by the defendant, as ‘in fair condition, not A No. 1, but in fair condition,’ are, technically, not admissible in evidence (see Rice v. James, 193 Mass. 458, 462, 79 N. E. 807), and do not enable us to bring before our eyes the actual appearance of the sidewalk. We disregard them.

This evidence fails to make out the existence of a defect for which the town is liable.

It is well established that a town or city is not bound to keep its ways perfect. The burden would be too heavy. It is enough that they are reasonably safe and convenient for travel. Raymond v. Lowell, 6 Cush. 524,53 Am. Dec. 57. A brick projecting an inch or two above others in a brick sidewalk is not a defect for which a municipality is liable. Newton v. Worcester, 174 Mass. 181,...