Delgado v. Town of Billerica

• Decision Date: 07 December 1948
• Citation: 82 N.E.2d 591,323 Mass. 483
• Parties: DELGADO et al. v. TOWN OF BILLERICA et al. CASIERI v. TOWN OF BILLERICA et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

323 Mass. 483

82 N.E.2d 591

DELGADO et al.

v.TOWN OF BILLERICA et al.

CASIERI

v.TOWN OF BILLERICA et al.

Supreme Judicial Court of Massachusetts, Middlesex.

Dec. 7, 1948.

Exceptions from Superior Court, Middlesex County; J. W. Morton, Judge.

Separate actions of tort by Helen Delgado and by Nunziata Casieri against the Town of Billerica and another for personal injuries. Verdicts for plaintiffs against defendant town. Defendant town excepted to the denial of its motions for directed verdicts.

Exceptions overruled.

Before QUA, C. J., and RONAN, WILKINS, SPALDING, and WILLIAMS, JJ.

J. A. Miraglia, of Boston, for plaintiffs.

P. H. Ready, of Lowell, for defendant.

RONAN, Justice.

These are two actions of tort brought against the town of Billerica and George Gunn to recover for personal injuries sustained by the plaintiffs while riding as passengers for hire in a taxicab, operated by Gunn, which skidded on a newly tarred or oiled surface of a public way in the defendant town shortly after one-thirty o'clock on the afternoon of July 9, 1945. The jury returned verdicts for the plaintiffs against the town and in favor of Gunn. The town excepted to the denial of its motions for directed verdicts.

The following findings could be found to be established by the evidence. The taxicab just prior to the accident was travelling upgrade, and until it reached the top of the hill no warning by barriers, signs, or otherwise was given by employees of the town that the surface of the way extending beyond the top of the hill and in the direction in which the taxicab was proceeding had recently been oiled or tarred so that this stretch of the way, as expressed by a witness, was ‘clear hot, tar, * * * it was just like an icy road, like a piece of glass, it was shining hot.’ The oil or tar was heated to two hundred twenty-five degrees Fahrenheit when it was applied to the road just before noon on the day of the accident. There was nothing about the locus as one approached the tarred portion of the street to indicate seasonably the danger of continuing along the way, as there was in Cody v. City of Boston, 258 Mass. 267, 269, 154 N.E. 753, and Pratt v. City of Peabody, 281 Mass. 437, 440, 183 N.E. 738. Here the jury could find that the tar or oil had been spread the entire width of the road and that a traveller would reach the tarred or oiled area before he had any reasonable opportunity of avoiding the perils with which he was suddenly faced.

The way was being tarred or oiled under the supervision of a foreman in the street department of the town and consequently the town had notice of the condition of the way, Mason v. Winthrop, 196 Mass. 18,Bowman v. City of Newburyport, 310 Mass. 478, 38 N.E.2d 682; and a recently tarred or oiled road could be found to be unsafe and inconvenient for ordinary travel, Adams v. Town of Bolton, 297 Mass. 459, 9 N.E.2d 562, and therefore defective. Zegeer v. Barrett Mfg. Co., 226 Mass. 146, 115 N.E. 291,Kelleher v. City of Newburyport, 227 Mass. 462, 116 N.E. 806, L.R.A.1917F, 710. See also Shearman v. State, 181 App.Div., New York, 912, 167 N.Y.S. 1127, affirmed 223 N.Y. 550, 119 N.E. 1076;Kirchner v. State, 223 App.Div., New York, 543, 228 N.Y.S. 718;Sporborg v. State, 226 App.Div., New York, 113, 234 N.Y.S. 476;McIntosh v. Jefferson County, 273 N.Y. 466, 6 N.E.2d 406.

The charge being full and complete as stated in the bill of exceptions, it is assumed that the jury found, as they properly could, that the plaintiffs were not guilty of contributory negligence, that their injuries were not caused by the negligence of Gunn, but that the defective condition of the way was the sole cause of the accident. Carroll v....