Howe v. City of Boston

• Decision Date: 31 March 1942
• Citation: 41 N.E.2d 1,311 Mass. 278
• Parties: CLARA M. HOWE v. CITY OF BOSTON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

311 Mass. 278

41 N.E.2d 1

CLARA M. HOWE v. CITY OF BOSTON.

Supreme Judicial Court of Massachusetts, Middlesex.

March 31, 1942

February 4, 1942.

Present: FIELD, C.

J., QUA, COX, &amp RONAN, JJ.

Proximate Cause. Way, Public: defect. Practice, Civil, Exceptions: whether error harmful. Error, Whether error harmful.

No liability of a city under G. L. (Ter. Ed.) c. 84, Section 15, was shown where the only rational conclusion permissible on the evidence was that a traveller's falling at a cross walk was due to his misjudging the height of the curbstone and losing his balance in stepping off it.

At the trial of an action for injuries due to a defective sidewalk, a ruling precluding the jury's considering a photograph of the place of the accident on the issue of damages, even if erroneous, was not reversible error where this court determined that the defendant was not liable.

TORT. Writ in the Superior Court dated September 21, 1934. The action was tried before Dowd, J.

H. L. Barrett, (J.

D. Upton with him,) for the plaintiff.

E. K. Nash Assistant Corporation Counsel, for the defendant.

COX, J. This is an action of tort to recover damages for personal injuries alleged to have been sustained by the plaintiff by reason of the defective condition of a public highway in the city of Boston. At the close of the evidence, the trial judge allowed the defendant's motion for a directed verdict and reported the case to this court, "being in doubt as to the correctness of . . . [the] ruling in allowing the defendant's motion for a directed verdict." (See G L. [Ter. Ed.] c. 231, Section 111.) In the body of the report there is a reference to "this bill of exceptions." At the trial, the plaintiff excepted to a ruling relative to the use of a photograph that was admitted in evidence, and it is stated in the report that this photograph is made a part of "this bill of exceptions." In the circumstances we consider also the correctness of this ruling. No question is raised as to the sufficiency of the notice that was given to the defendant as to the time, place and cause of the plaintiff's injuries. The only evidence as to how the plaintiff sustained her injuries comes from her.

It could have been found that on October 31, 1933, shortly before noon, the plaintiff, who was sixty-two years of age, was walking down Willow Street; that it was a dry day; that she paused just about where Acorn Street crosses, and then stepped with her right foot to the cross walk, and, as she did so, the whole of her left foot "slipped off the curbing and . . . [she] looked across this narrow street [Acorn Street] and saw a very low curbstone, so that . . . [she] stepped much farther than . . . [she] expected to and was thrown off . . . [her] balance"; and that her feet twisted under her and she fell slowly and came down entirely on the cross walk. She testified that the curbing from which she stepped was very high, and, when asked by her counsel what caused her to fall, replied that "her foot slipped and went off a curbstone that was higher than she expected and she couldn't regain her balance." She also testified that the condition of the curbstone when she fell was worn and smooth, and that the corner was off; that, as she came along and was about to step from the curbing, she noticed that the curbing on the opposite side of Acorn Street was about four inches high; that she looked at the curbing from which she expected to step and saw that it was much higher and then proceeded to step down and found that it was much higher than she expected it to be, and that "she misjudged the height of the curbing." There was testimony from another witness that the curbing from which the plaintiff stepped was very smooth and that it was about ten inches down to the cross walk, and that there was "a joint and an opening and a V-shaped opening [in the curbing] . . . that . . . was better than an inch wide and opened up more at the bottom; that the edge of the curbstone was worn down very smooth." Finally, the plaintiff testified that her fall was not at all like being thrown "off her balance as when a person walking down stairs thinking that she has come to the last step and finds there is another one; that her whole foot was on the curbstone as she stepped down but no portion of it extended over the curbstone, her foot was about at the edge of the curb and about flush with it; that there was an aperture or space in the curbing and she should say that her foot must have been in it but she did not know whether it was or not except that she slipped very suddenly and could soon feel it; that she just remembered the falling and how her foot seemed to catch and slip in something and turn."

The defendant is not liable unless some defect for which it is legally responsible was the sole cause of the plaintiff's injury. G. L. (Ter. Ed.) c. 84, Section 15. Igo v. Cambridge, 208 Mass. 571 , 575. Adams v. Bolton, 297 Mass. 459 , 465. The plaintiff does not contend that the difference between the grade of the sidewalk where she was walking and the cross walk on Acorn Street constituted a defect. See Clohecy v. Haverhill, 299 Mass. 378, 380. Her contention is that the worn and smooth condition of the curbing and the presence of the V-shaped opening amounted to actionable defects, and that they caused her injury.

We are of opinion that it is unnecessary to determine whether these conditions amounted to defects (see Cromarty v. Boston, 127 Mass. 329 , 331; Comerford v. Boston, 187 Mass. 564; Moynihan v. Holyoke, 193 Mass. 26 , 28, 29; George...