Hickey v. City of Waltham

• Decision Date: 06 September 1893
• Citation: 34 N.E. 681,159 Mass. 460
• Parties: HICKEY v. CITY OF WALTHAM et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

159 Mass. 460

34 N.E. 681

HICKEY

v.CITY OF WALTHAM et al.

Supreme Judicial Court of Massachusetts, Middlesex.

Sept. 6, 1893.

Exceptions from superior court, Middlesex county.

Action for personal injuries by one Hickey against the city of Waltham and certain contractors. The court below ruled that plaintiff's evidence was insufficient to go to the jury. Plaintiff excepts. Reversed and remanded.

J.F. Cronan, for plaintiff.

C.M. Ludden, for defendant city of Waltham. R.M. Stark, for the contractors.

HOLMES, J.

This is an action for personal injuries, and the case comes before us on an exception to a ruling that the plaintiff was not entitled to go to the jury on her evidence. The evidence tended to show the following facts: The plaintiff lived in a house on the northerly side of Calvary street, in Waltham. The city was engaged in building a sewer in the street, had dug a trench there, and had piled the earth from the trench on the northerly side of the street, covering the sidewalk, and trespassing upon the land in front of the plaintiff's house. The house was set back only six or seven feet from the street, so that the plaintiff was more or less besieged there, and walled in. The southerly sidewalk was open to travel. During the continuance of this state of things, which had lasted for about six weeks, the plaintiff had walked over the mound of earth, crossed the trench by a plank which was laid across it, and had pursued her way on the other side of the street, returning in similar manner. On the evening of the accident the height of the pile had been reduced by shoveling from nine or ten to four or five feet, and the earth was soft. The plaintiff started to cross it as usual, but, just as she was passing the top of the edge, something gave way under her foot, and she fell, and broke her ankle. There was no pathway through the mound, although some effort had been made by the plaintiff's sister to get the superintendent to make one.

On this state of facts, we think that the jury would be warranted in finding that the defendant did not do its whole duty. The street was not closed altogether, but they might find that the plaintiff was shut off from access to the street in an unreasonable manner, and that it was practicable and proper to make a pathway through the mound, so that the plaintiff could cross to the southerly side of the street with comfort and safety. The more doubtful question is whether there was any element of danger in ...