Fortin v. Inhabitants of Easthampton

• Citation: 13 N.E. 599,145 Mass. 196
• Parties: FORTIN v. INHABITANTS OF EASTHAMPTON.
• Decision Date: 21 October 1887
• Court: United States State Supreme Judicial Court of Massachusetts

145 Mass. 196

13 N.E. 599

FORTIN v. INHABITANTS OF EASTHAMPTON.

Supreme Judicial Court of Massachusetts, Hampshire.

October 21, 1887

COUNSEL

D.W. Bond and J.B. O'Donnell, for plaintiff.

The only questions raised in this case arise on the request of the defendant, at the close of the evidence, for a ruling that there was no evidence for the consideration of the jury. The defect could have been remedied by reasonable care and diligence. It is the duty of the town, when a way is unsafe for travel, to erect barriers to prevent its use until the defect is remedied. Dominic v. Waltham, 4 Gray, 596. The appropriation of money by the town for repairs of ways is not repairing the ways. The passage of the by-law, and giving notice of it, does not excuse the town from its duty, or exempt it from its liabilities for defects. "Proof of an ordinance is no proof that the work was done by the abutters under it." Hayes v. Cambridge, 138 Mass. 461. There was evidence that the town had reasonable notice of the defect, or might have had notice thereof by the exercise of reasonable care and diligence. A change in the law, by the act of 1877, (Pub.St. c. 52, § 18,) with reference to the notice by a town, has been considered in several recent cases. Hayes v. Cambridge, 136 Mass 402; Post v. Boston, 141 Mass. 189, 4 N.E. 815; Olson v. Worcester, 142 Mass. 536, 8 N.E. 441; Blake v. Lowell, 143 Mass. 296, 9 N.E. 627. See also, Reed v. Northfield, 13 Pick. 94, 98; Howe v. Lowell, 101 Mass. 99; Donaldson v. Boston, 16 Gray, 508, 511; Foster v. Boston, 127 Mass. 290; Whitehead v. Lowell, 124 Mass. 281; Harriman v Boston, 114 Mass. 241. In the present case, the jury had a right to conclude that the defect had been there 10 days.

Wm. G. Bassett, for defendant.

There was no malconstruction, defect, or want of repair in the walk itself, or near it. The jury ought not have been permitted to find for plaintiff. A burden imposed upon plaintiff by the present statute, to prove that the damage or injury might have been prevented by reasonable care and diligence on the part of defendant, was not met. Pub.St. c. 52, § 18; Rooney v. Randolph, 128 Mass. 580; Hayes v. Cambridge, 136 Mass. 402; Post v. Boston, 141 Mass. 189, 4 N.E. 815; Hanscom v. Boston, 141 Mass. 242, 5 N.E. 249. If the evidence had tended equally to sustain either of the inconsistent propositions,--that it was the fault of the defendant that ice was on the walk at all, and the defendant's fault that all the ice that could be removed was not gotten off,--neither of them could be said to be established by legitimate proof. Smith v. Bank, 99 Mass. 605, 612; Crafts v. Boston, 109 Mass. 519. While insisting that the cause of the injury was the result of an attempt, not made by defendant, and when made not appearing, to clear off ice at or about the place of the alleged defect, which ice was there from natural causes, and not because of defendant's neglect or fault, could plaintiff have recovered under the former statute? Gen.St. c. 44, § 22; Nason v. Boston, 14 Allen, 508; Billings v. Worcester, 102 Mass. 329. Under the present statute, the cause of the fall being the "hole," defendant could be held liable, if at all, only because the hole could have been removed by getting off the ice around the hole, which caused it to exist, together with proof that reasonable effort and diligence on defendant's part would have enabled defendant to remove it; yet without such proof, but on the contrary, while affirmatively showing that such a result could not have been reached, plaintiff is allowed to recover because it was not reached. It was the duty of the court to prevent this. Todd v. Railroad Co., 3 Allen, 18, and 7 Allen, 207.

OPINION

W. ALLEN, J.

The case assumes that a defect in the sidewalk caused the injury to the plaintiff. The only questions raised are whether there was any evidence that the defendant had notice of the defect and whether there was any evidence that the defect might have been remedied, or the injury prevented, by reasonable care and diligence on the part of the defendant, so as to render the defendant liable...