Fox v. City of Chelsea

• Decision Date: 20 May 1898
• Citation: 50 N.E. 622,171 Mass. 297
• Parties: FOX v. CITY OF CHELSEA (two cases).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

171 Mass. 297

50 N.E. 622

FOX v. CITY OF CHELSEA (two cases).

Supreme Judicial Court of Massachusetts, Suffolk.

May 20, 1898

COUNSEL

Montague & Keyes and Sherman L. Whipple, for plaintiff.

G.M Stearns, for defendant.

OPINION

KNOWLTON J.

The plaintiff brings one of these actions in his own right, and the other as administrator of the estate of his deceased wife, to recover damages growing out of her fall into a ditch dug by the water commissioners of Chelsea in one of the principal streets of that city. It was undisputed that a series of excavations had been made under the direction of the water commissioners along Everett avenue, between the street-railway track and the curbstone near the junction of Broadway and Everett avenue, for the purpose of laying water pipes to supply the inhabitants with water. At about 10 o'clock in the evening an electric car had come from Everett, through Everett avenue, and had encountered a disabled car, which it pushed down to a point near the cross walk at the junction of the avenue with Broadway, where it stopped and was about to return. The conductor called out, "Car for Everett, Malden, and Melrose;" and the plaintiff and his wife, who were then a short distance away on Broadway, started in the direction of the car, passed from the corner of Broadway and Everett avenue a short distance up on the westerly side of Everett avenue, and then went from the sidewalk towards the car to get upon it, when the plaintiff's wife fell into the trench and was injured. There was a conflict of testimony in regard to the light at that point. Three witnesses testified that it was very dark, and there was evidence tending to show that between the two lanterns set upon the horse just by the cross walk, at the junction of the streets, and a lantern some distance beyond the second car going towards Everett, there was no light. There was an electric light near the junction of the streets, but there was some testimony that it was then rather dim, and the evidence tended to show that the two cars, with curtains down on one side, cut off the light, which otherwise would have come to the place of the accident. A watchman who was stationed there to look after the lights, and see that travelers were warned against the excavations, had gone away for a while to a position about 300 feet from the place of the accident. There was some evidence that one lantern which had been relied on to give light was, soon after the accident, found in the trench near where the plaintiff's wife fell, and other evidence tending to show that a horse put near there as a barrier had been moved out of its place. The evidence introduced by the defendant tended to show that the place was well lighted and sufficiently watched.

The evidence was ample to show that the water commissioners in digging the ditch were acting as agents of the city, and that the city was responsible for their negligence in leaving excavations insufficiently lighted in the streets. Oliver v. City of Worcester, 102 Mass. 497; Hand v. Brookline, 126 Mass. 324; Neff v. Inhabitants of Wellesley, 148 Mass. 487, 20 N.E. 111; Stoddard v. Inhabitants of Winchester, 157 Mass. 567, 32 N.E. 948.

There was evidence which tended to show negligence in not sufficiently lighting the excavations, and in not...