Hanson v. City of Worcester

• Court: Supreme Judicial Court of Massachusetts
• Writing for the Court: Before WILKINS; CUTTER
• Citation: Hanson v. City of Worcester, 190 N.E.2d 106, 346 Mass. 51 (Mass. 1963)
• Decision Date: 06 May 1963
• Parties: Mary HANSON v. CITY OF WORCESTER.

Page 106

190 N.E.2d 106

346 Mass. 51

Mary HANSON v. CITY OF WORCESTER.

Supreme Judicial Court of Massachusetts, Worcester.

Argued April 2, 1963.

Decided May 6, 1963.

John J. O'Connell, Worcester, for plaintiff.

Andrew F. McCarthy, Asst. City Solicitor, for defendant.

Before WILKINS, C. J., and SPALDING, CUTTER, KIRK and SPIEGEL, JJ.

CUTTER, Justice.

The plaintiff saved an exception when a verdict was directed for the city in this action of tort. She seeks to recover for injuries incurred when her foot became caught in a hole in the street. Because of its size, shape, depth, and location, the hole could reasonably have been found to have been a defect in a public highway. See Becker v. Boston, 321 Mass. 230, 231-232, 235-236, 72 N.E.2d 524. Ch. Green v. Wilmington, 339 Mass. 142, 144-145, 158 N.E.2d 143.

This hole, 'fifteen inches by fifteen inches and about six inches deep,' was 'within the boundaries of the cross walk' at the intersection of Waverly Street and Providence Street in Worcester. '[O]ne edge [of the hole] was rounded off--and the [three] pictures [introduced in evidence] correctly show the hole.' '[i]t looked * * * [as if] there was a steel plate in the bottom of the hole.' The steel plate, in one photograph taken on the day of the accident, is shown to have been a circular metal cap, apparently to a pipe. It bears, among other marks, the raised metal inscription 'W. W. W.' and a date.

At the time of the accident 'Providence Street was under construction.' the 'entire length of Waverly Street * * * was resurfaced by the city in 1952. The [city] water department * * * when the road was resurfaced, had a man on the job. * * * A new grade for the street was [then] established.'

The city concedes that the 'only issue presented * * * is whether there was evidence that a defect existed long enough for the * * * [city] in the exercise of reasonable care and diligence to know of the defect.' See G.L. (Ter.Ed.) c. 84, § 15; MacDonald v. Boston, 318 Mass. 618, 619, 63 N.E.2d 355. The burden of proof on this issue rests on the plaintiff.

It is possible, of course, that the hole in the street surface was of very recent origin and in some way connected with the then current construction on Providence Street. This, however, is not a case where the matter is left to 'pure conjecture.' Cf. Brummett v. Boston, 179 Mass. 26, 29-30, 60 N.E. 388. The smooth, rounded edge of the hole and its general appearance, as shown in the excellent photographs,...