Foster v. City of Boston

• Decision Date: 18 August 1879
• Citation: Foster v. City of Boston, 127 Mass. 290 (Mass. 1879)
• Parties: Susan A. Foster v. City of Boston
• Court: Supreme Judicial Court of Massachusetts

127 Mass. 290

Susan A. Foster v. City of Boston

Supreme Court of Massachusetts

August 18, 1879

Argued November 12, 1878

Suffolk. Tort, on the Gen. Sts. c. 44, § 22, for personal injuries sustained by the plaintiff on March 18, 1876, by falling into an open coal-hole in the sidewalk in front of a public school-house on a highway in Boston.

At the trial in this court, before Morton, J., there was no evidence that the defect had existed for twenty-four hours, but there was some evidence that the cover of the coal-hole was removed by the janitor, or that he knew of such removal, within that time.

The judge ruled that notice to the janitor would be notice to the city; and that, if the jury found that the janitor removed or knew of the removal of the cover of the coal-hole, they might find that the city had notice of the defect.

The jury returned a verdict for the plaintiff; and the judge reported the case for the determination of the full court. If the rulings were correct, judgment was to be entered on the verdict; otherwise, judgment was to be entered for the defendant.

The case was argued at the bar in November 1878; and afterwards submitted on briefs to the whole court.

Judgment for the defendant.

E. P Nettleton, for the defendant.

J. H Wolff, for the plaintiff.

OPINION

Endicott J.

The court is of opinion that notice to the janitor of a school-house in the city of Boston, that a highway is in a defective and unsafe condition, is not notice to the city. It has been repeatedly held, in those cases where a defect in a highway has not existed twenty-four hours, that the city or town cannot be held liable for damages occasioned thereby unless some proper officer, whose duty it is to attend to municipal affairs, has received reasonable notice of the same; or unless the facts presented lead to the inference that such officer knew, or with proper care might have known, of its existence. ...