Farrington v. Boston Elevated Ry. Co.

• Decision Date: 22 May 1909
• Citation: 202 Mass. 315,88 N.E. 578
• Parties: FARRINGTON v. BOSTON ELEVATED RY. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

202 Mass. 315

88 N.E. 578

FARRINGTON v. BOSTON ELEVATED RY. CO.

Supreme Judicial Court of Massachusetts, Suffolk.

May 22, 1909

COUNSEL

Elder & Whitman and Clarence A. Barnes, for plaintiff.

Sughrue & Chase and Robert M. Bowen, for defendant.

OPINION

HAMMOND J.

This is an action to recover for injuries sustained by the plaintiff in alighting from one of the defendant's open cars at 8:45 in the evening of July 28, 1905, at or nearly opposite the intersection of Garrison street with Huntington avenue in Boston. Through this part of the avenue there is a reserved space 25 feet wide (including curbstones) which was laid out in 1894 as a part of the avenue, 'for the use of street railways and for grass.' This reserved space is a few inches above the level of the street on either side, and is bounded with granite curbing, 7 inches wide, set 3 feet 6 inches from the inside or gauge line of the rail. At the intersection of the various cross-streets and opposite Garrison street are paved 'cross-overs' for teams higher than the asphalt surface of Huntington avenue. The curbstones above mentioned terminate at these 'cross-overs' in curved corner granite blocks which turn inwards towards the rails and come within 7 inches of the nearest rail. The corner block nearly opposite the northerly sidewalk of Garrison street, being the block upon which the plaintiff testified she stepped on alighting from the car, was 3 inches higher than the asphalt surface of Huntington avenue next to the straight curbing of the reserved space, 2 1/4 inches above the asphalt at another point nearer the rail, and 1 3/4 inches higher than the asphalt at the place where the asphalt and paving came together, which point was a little less than 2 feet from the rail. These differences in the height of the top surface of the granite block above the surface of the street we understand are not caused by any unevenness in the surface of the stone, but by the gradual ascent of the crossing as it goes from Huntington avenue towards the rails of the defendant.

The avenue and cross-over, including the granite curbing, were constructed by the city of Boston, upon which municipality rests the duty of keeping the streets in repair. The physical condition had not changed from the time of the construction up to the time of the accident. There is no evidence that there was any imperfection in the work itself. It was just exactly what it appeared to be. No claim was made that it was not in good repair.

As to the accident the plaintiff testified that she and a friend were seated upon the fourth seat from the rear of the car she being at the left of her friend who was at the right-hand end of the seat; that as the car approached Garrison street she signaled to the conductor, who rang the bell and the car came to a full stop. 'She stepped past her friend, down upon the running board with both feet, and holding to the forward grab rail by her left hand, stepped down with her right foot to the ground, as she supposed, and when her toe struck the ground she let go her hold and her foot slipped and turned over, and she fell to the ground and broke her leg.' She further testified that 'after her fail she was right close to the car, so that she could touch the running board with her hand; that she was helped up and to the nearest corner of Garrison street, and then looked back, and for the first time noticed that the rear of the car projected out into the paved cross-over for teams.' On cross-examination she testified that 'the car had arrived at Garrison street and that she was at Garrison street where she wanted to stop, but she did not notice particularly where the car had stopped, or that it had not gone far enough along, and that she supposed it had stopped where it always did; that she looked down as she stepped off, but that the car was brilliantly lighted and she could not see the ground and supposed the car was at the brick cross-walk; that she should judge, looking at the plan, that he foot landed at about the middle of the curved block, on the edge; that when she stepped down she stepped out some inches beyond the running board to clear it, as one naturally would do; that as she alighted her heel slipped off the curb, which turned her ankle, and she fell; that during all this time the was stopped still,...