City of Boston v. Coon

• Court: Supreme Judicial Court of Massachusetts
• Writing for the Court: HAMMOND
• Citation: City of Boston v. Coon, 175 Mass. 283, 56 N.E. 287 (Mass. 1900)
• Decision Date: 28 February 1900
• Parties: CITY OF BOSTON v. COON et al.

175 Mass. 283

56 N.E. 287

CITY OF BOSTON

v.COON et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Feb. 28, 1900.

Exceptions from superior court, Suffolk county; Charles U. Bell, Judge.

Tort by city of Boston against John J. Coon and others to recover amount of judgment recovered in a suit of one Blessington against the city of Boston. Judgment for plaintiff, and defendants bring exceptions. Exceptions overruled.

S. M. Child, for plaintiff.

L. G. Blair and J. P. Sweeney, for defendants.

HAMMOND, J.

It is true, as claimed by the defendants, that the judgment in the suit of Blessington v. City of Boston, 153 Mass. 409, 26 N. E. 1113, is conclusive against them only on three points, namely, that the highway was defective, that Blessington was in the exercise of due care, and that he suffered damages to the amount he recovered thereby, and, if the evidence for the plaintiff had stopped there, it could not have been ruled as matter of law that the defendants were answerable over to the plaintiff. But the evidence did not stop there. It further appeared as undisputed facts that the defendants were engaged in the construction of a building upon a lot of land abutting on Causeway street, in the plaintiff city, and, under a permit issued by the city, had excavated, for the purpose of connecting the building with a sewer, a trench extending from the building across the sidewalk into the street, and under the tracks of the West End Street-Railway Company which were duly located in the street; that, as a protection to public travel, the defendants had erected barriers upon both sides of the trench, consisting of board fences extending across the sidewalk and for a short distance into the street, and two large wooden horses, about 15 feet in length, extending from the end of the fences beyond the end of the trench; that 20 of the cars of the West End Company passed over the trench every hour, and the street-railway company, in order to continue running its cars, had placed two of its employés at the trench, whose duty it was to move the wooden horses whenever it was necessary for the street-railway cars to pass over it; and that the existence of the trench, the fact that it had been open for a week before the accident, the method of barricading, the frequency of the trips made by the street-railway company, and the manner of removing the wooden horses by its employés, were known both to the officers of the city and the defendants, and no objection was made by the city. It further appeared that at...