Clinton v. Town of Revere
| Decision Date | 02 April 1907 |
| Citation | 195 Mass. 151,80 N.E. 813 |
| Parties | CLINTON v. TOWN OF REVERE. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
J. J. Feely and Roger Clapp, for plaintiff.
Samuel R. Cutler and Harry W. James, for defendant.
The first question is, whether there was any evidence upon which the jury could find, that the street was unsafe for the use of travelers in ordinary vehicles. Baker v. Fall River, 187 Mass. 53, 72 N.E. 336. It apparently was maintained with sidewalks, and in the roadway a double line of car tracks were laid. In their description of the alleged defect the plaintiff and his witnesses, whose testimony comprises all the evidence on this issue, differed only, as to the depth of the gully. This depression, which ran longitudinally with the street about 18 inches from the curbstone, could be found to have been some 8, or 9 inches in length, by a foot in width, while varying in depth, from 6 to 8, or 10 inches. The area covered, the depth of the hole, and its location with reference to the use of the street, were essential facts for the consideration of the jury, to whom this question was rightly left. Hodgkins v Rockport, 116 Mass. 573; Mason v. Winthrop, 196 Mass. 18, 81 N.E. 644. The plaintiff's use of a bicycle as a conveyance does not prevent the maintenance of the action, if at the time of the accident he has using ordinary care. Spring v. Williamstown, 186 Mass. 479, 71 N.E 949. When injured, a car and a furniture wagon were passing abreast in the direction he was going, and upon turning to the right of the wagon to go by, he ran into the gully, and was thrown to the ground. It also appeared that he was accompanied by a companion, who riding ahead had safely passed, even if the space between the wagon and the curbstone was only three feet in width, and the plaintiff testified that as he approached, but before attempting to pass, his view of the gully was cut off by the team. Under these circumstances, although he failed to observe the requirements of Rev. Laws, c. 54, § 2, by turning and passing by to the left of the car, it was for the jury also to decide, if his conduct was reasonably prudent. Torphy v. Fall River, 188 Mass. 310, 314, 74 N.E 465, and cases cited; Campbell v. Boston, 189 Mass. 7, 75 N.E. 96; Smith v. Conway, 121 Mass. 216. In suits to recover damages for injuries caused to travelers by defective ways, a city or town is not liable unless the defect is the sole cause of the accident. Raymond v. Haverhill, 168 Mass. 382, 384, 47...
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