Dowd v. Inhabitants of Chicopee

• Decision Date: 28 October 1874
• Citation: 116 Mass. 93
• Parties: John Dowd v. Inhabitants of Chicopee
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

116 Mass. 93

John Dowd v. Inhabitants of Chicopee

Supreme Court of Massachusetts

October 28, 1874

Hampden. Tort under the Gen. Sts. c. 44, § 22, for personal injuries sustained through an alleged defect in a highway which the defendant was bound to keep in repair.

At the trial before Morton, J., the jury found for the plaintiff and a bill of exceptions was allowed in substance as follows: It appeared in evidence that the plaintiff, a lad of fifteen years of age, on the evening of June 12, 1872, while it was dark, was travelling on foot along the highway in question and, coming upon the alleged defect, fell and received the injury complained of. The highway, from one outside limit to the other, was fifty-five feet wide; upon either side of it dwelling-houses were situated close together and close to the line of the highway, and the immediate vicinity was thickly settled.

The plaintiff also testified that the street in question was one of the greatest business streets in the town; that there was a large school-house fitted for some 250 scholars, within a few rods of this place; that school was kept therein during school hours, and the school children passed all over the street; that a Catholic church was being built near it; that there were no cross-walks, and people crossing from one side of the street to the other were accustomed to cross at all places over the street.

The alleged defect consisted of two bolts, each five eighths of an inch in diameter, standing vertically an inch and a half or an inch and three quarters in height above a perforated iron plate, which formed the cover to a sewer; these bolts were used to hold the plate in place, and iron nuts half an inch thick were screwed on the bolts down upon the plate, the bolts extending an inch to an inch and a quarter above the nuts. The plate was two feet square, and the bolts were twenty inches apart. This plate was placed nine feet from the southerly limit of the highway. The highway extended along the side of a steep, sandy hill, down which the water often ran in great quantity over the highway; to protect the highway from washing away at such times, and to guard the land below, the sewer was constructed.

The evidence as to the description and common use of the said highway was conflicting. Several witnesses testified that from one side to the other it was substantially flat; that there were no sidewalks or gutters; that carriages as well as foot passengers travelled over the whole width of the way that people in the ordinary line of travel, in carriages or on foot, passed as well over said plate as over any other portion. Several other witnesses testified that an earth sidewalk, well defined, eight feet wide and six to eight inches high above the carriage way, extended along both sides of said way; that the carriage way between said side-walks was thirty-nine feet wide; that the plate was in the bottom of the gutter six inches below the level of the sidewalk, and ten inches below the middle of the carriage way; that said gutter extended several rods in either direction from the plate, and that the lines of carriage and foot travel were entirely distinct.

There were no posts or trees along the line of said gutter. The plaintiff for several years before had resided a few rods from the place where he received the injury, was familiar with the place, knew where the sewer was, and had noticed the plate and bolts several times before. He testified that while walking along in company with another boy, not thinking anything about the sewer plate, he hit his foot against one bolt, and, falling forward, struck his knee upon the other bolt and was injured. There was evidence which the defendant contended tended to show that the plaintiff was engaged in play at the time of the...