Gustat v. City of Everett

• Decision Date: 30 December 1931
• Citation: 278 Mass. 1,179 N.E. 217
• Parties: GUSTAT v. CITY OF EVERETT.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

278 Mass. 1

179 N.E. 217

GUSTAT

v.CITY OF EVERETT.

Supreme Judicial Court of Massachusetts, Middlesex.

Dec. 30, 1931.

Report from Superior Court, Middlesex County; Alonzo R. Weed, Judge.

Action by Matthew M. Gustat against the City of Everett. Verdict for defendant. On report.

Judgment entered for defendant pursuant to the report.

J. C. Johnston, of Boston, for plaintiff.

H. H. Newton, City Sol., of Boston, for defendant.

WAIT, J.

The only questions presented on this report are whether a condition at the curbstone of Ferry street in Everett constituted a defect in the way for which the city was liable under G. L. c. 84, §§ 1, 15; and whether lack of due care of the plaintiff contributed to his injury.

In 1900 the city set edgestones along a sidewalk on Ferry street southeast of Rock Valley avenue. The stones, in general, stood seven inches above the level of the carriage way of Ferry street; but at a point not far from Rock Valley avenue, for a space of ten feet, the curb was laid about four and one-half inches above the Ferry street surface. This was done at a driveway, then in use across the sidewalk to a house and stable on on the abutting premises, in order to allow easy access to the driveway. There was left an abrupt drop of about two and one-half inches where the ends of the lower and higher curbstones met. In 1914 the city laid a granolithic sidewalk in place of the earlier gravel walk; and, where the driveway ran, beginning about twelve inches from the outer surface of the edgestone, graded the new surface evenly down to the outer edge of the lower curbing. This left an abrupt rounded rise in the walk at either end of the depressed curb varying in depth from two and one-half inches at the outer edge of the curb to nothing at a point twelve inches back toward the property line, as if a wedge ten feet long, twelve inches wide, and from nothing to two and one-half inches in depth had been taken out of the level sidewalk. The surface of the walk and of the curbing was in good condition at the time of the accident, July 30, 1927. It was admitted that no defect existed unless the drop at the abrupt faces of the triangular ends of the higher curbstones constituted defects. At least a year before the accident the house and stable served by the driveway were demolished and a block of stores was built on the abutting lot flush with the street line, so that it became impossible to drive across the sidewalk on to the lot. A doorway to one of the stores stood nearly opposite the depressed curbstone. A truck or wagon could back up to this door over the lowered curbstone and the graded sidewalk.

On the forenoon of July 30, 1927, a truck in which the plaintiff was riding stopped parallel with the curb and about six inches from it, so that he could deliver some goods at a store a little behind the place at which it came to rest. The seat was about opposite the lowered curb at the end nearer the store he wished to visit. The door opened outward and toward the radiator. The plaintiff, with his back to the sidewalk, took a bundle from the driver and alighted by putting his right foot on the running board and next placing his left foot on the curbing where the higher and lower stones met. As the whole foot was not supported by either the higher or lower curbstone, his ankle turned, and he was thrown down. In our opinion there was no actionable defect.

The abutting owner was...