Guidi v. Town of Great Barrington

• Decision Date: 02 October 1930
• Citation: 272 Mass. 577,172 N.E. 916
• Parties: GUIDI v. TOWN OF GREAT BARRINGTON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

272 Mass. 577

172 N.E. 916

GUIDI

v.TOWN OF GREAT BARRINGTON.

Supreme Judicial Court of Massachusetts, Berkshire.

Oct. 2, 1930.

Exceptions from Superior Court, Berkshire County; H. T. Lummus, Judge.

Action by Eugene Guidi, p. p. a., against the Town of Great Barrington. Verdict for plaintiff, and defendant brings exceptions.

Exceptions overruled.

F. H. Wright, of Great Barrington, for plaintiff.

F. J. Brothers, Town Counsel, of Great Barrington, for defendant.

CROSBY, J.

There was evidence tending to show that the plaintiff, four years of age, was on June 15, 1927, operating a tricycle or velocipede along the sidewalk on Avery Lane in the defendant town; that while traveling on said sidewalk in a northerly direction he was thrown from the vehicle because of the condition of the sidewalk and sustained personal injuries. There was further evidence tending to show that the sidewalk was a town way which it was the duty of the defendant to keep in reasonable repair; that due notice of the time, place and cause of the injury was given to the defendant as required by G. L. c. 84, § 18. There is nothing to show that the plaintiff was using the sidewalk for purposes of play. The record recites that at the time he was injured he was traveling on the sidewalk going north. There was evidence from which it could have been found that the sidewalk was constructed of concrete in blocks four feet wide and three feet long; that three of the blocks were out of their ordinary position; that there was ‘an abrupt difference’ in height, between the third and fourth blocks, estimated by some witnesses as between two and three inches, and by others as four inches, and that this caused the accident. There was evidence from which it could be found that this condition of the sidewalk had existed for several weeks before the plaintiff was injured. At the close of the evidence the defendant filed a motion for a directed verdict. The presiding judge asked counsel for the defendant upon what grounds his motion was based; the latter replied that the ground of his motion was that there was no evidence of a defect in the sidewalk sufficient to render the defendant liable. Thereupon the motion was denied, and the defendant excepted. The jury returned a verdict for the plaintiff.

As the only ground upon which the defendant contended that it was not liable was that the evidence did not warrant a finding that the sidewalk was in a defective condition, the sole issue before us is whether a verdict should have been ordered for the defendant upon that ground. We are of opinion that if it was found there was a difference in the level of the concrete blocks of four inches it could not have been ruled as matter of law that the way was not defective. Whether a defect existed presented a...