Hanscom v. City of Boston

• Decision Date: 26 February 1886
• Citation: Hanscom v. City of Boston, 141 Mass. 242, 5 N. E. 249 (Mass. 1886)
• Parties: HANSCOM v. CITY OF BOSTON.
• Court: Supreme Judicial Court of Massachusetts

141 Mass. 242

5 N.E. 249

HANSCOM v. CITY OF BOSTON.

Supreme Judicial Court of Massachusetts.

February 26, 1886

COUNSEL

Robert W. Jason, for defendant.

W.B Gale and J.W. McDonald, for plaintiff.

OPINION

FIELD, J.

Pub.St c. 52, § 18, provides that if a person receives bodily injury or damage to his property through a defect in a highway "which might have been remedied, or which damage or injury might have been prevented, by reasonable care and diligence on the part of the county or town," he may recover damages therefor. This provision was taken from St.1877, c. 234, § 2. Gen.St. c. 44, § 72, was that such a person might recover damages if the county or town "had reasonable notice of the defect," or if the same had existed for the space of 24 hours previous to the occurrence of the injury or damage. Under the General Statutes upon the question of reasonable notice, the rule of law was that "the facts must be such as to lead to the inference that the proper officers of the town whose duty it is to attend to municipal affairs did actually know of the existence of the defect, or, with proper diligence and care, might have known it. Donaldson v. Boston, 16 Gray, 508; Harriman v. Boston, 114 Mass. 241; Monies v. Lynn, 119 Mass. 273; S.C. 121 Mass. 442, and 124 Mass. 165; Foster v. Boston, 127 Mass. 290.

The decisions upon reasonable notice throw some light upon what is meant in the statute of 1877 (chapter 234, § 2) by reasonable care and diligence. See St.1786, c. 80, § 7; Rev.St. c. 25, § 22; St.1850, c. 5; Brady v. Lowell, 3 Cush. 121. We think that the defect must be one which the proper officers either had knowledge of, or by the exercise of reasonable care and diligence might have had knowledge of, either in time to have remedied it, or to have prevented the injury complained of. Lyman v. County Com'rs of Hampshire Co., 140 Mass. 311; Purple v. Greenfield, 138 Mass. 1; Rooney v. Randolph, 128 Mass. 580; Harriman v. Boston, ubi supra.

In the present case there is no evidence that the cover of the coal-hole was out of place before the plaintiff stepped on it and was injured. There is evidence from which the jury may have found that the cover of the coal-hole had not been fastened down on the inside for some time before the accident. If the defendant is liable at all, it must be on the ground that the cover, when in its place, if unfastened on the inside, constituted a defect in the street which the proper officers of the city ought, by the exercise of reasonable care and diligence, to have known and remedied. It is to be noticed that Gen.St. c. 44, § 1, required that highways be kept in repair, "so that the same may be kept safe and convenient for travelers;" but Pub.St. c. 52, § 1, requires that they be kept in repair, "so that the same may be reasonably safe and convenient for travelers." Under the existing statutes, the questions necessarily arise--First, whether there is any evidence which tends to show that the highway was not reasonably safe and convenient for travelers; and, second, if there is such evidence, whether there is any evidence that the town, by reasonable care and diligence, might have remedied the defect, or prevented the damage or injury.

The exceptions in the present case relate solely to the second question. The testimony was, in effect, that this was a firm and close-fitting cover to the coal-hole, tightly set in the sidewalk, presenting no obstruction to travel, and even and regular with the surface of the walk. There was no testimony that it could be displaced by the ordinary use of the walk. It does not appear that the ordinances of the city regulating coal-holes were put in evidence, (see Ord.1883, c. 26, §§ 24, 25,) or that the covering was not constructed in accordance with the ordinance. The cover had a ring on the under side, intended to be used in fastening it down. There was no evidence that the coal-hole and cover were improperly constructed, or that there was anything in the appearance of the coal-hole or cover that indicated any defect, or that it had ever before been out of place, and no evidence that the officers of the city had any knowledge that the cover was not fastened down on the inside. It has never yet been held to be the duty of the officers of the city to examine, from time to time, covers of coal-holes which are properly constructed and apparently secure, to see if the occupants of the cellars over which the coal-holes are, keep the covers fastened on the inside. In all the decided cases under former statutes, if the defect had not existed for 24 hours, and the town officers had no actual notice or knowledge of it, or did not create it, it was left to the jury to find whether these officers, by proper diligence and care, might have known it, only when there was evidence that the defect was open and visible, so that it might be said to be, in a sense, notorious. Doherty v. Inhabitants of...