Hyde v. City of Boston

• Decision Date: 31 May 1904
• Citation: 71 N.E. 118,186 Mass. 115
• Parties: HYDE v. CITY OF BOSTON. SAME v. BOSTON ELEVATED RY. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

186 Mass. 115

71 N.E. 118

HYDE

v.CITY OF BOSTON.

SAME

v.BOSTON ELEVATED RY. CO.

Supreme Judicial Court of Massachusetts, Suffolk.

May 31, 1904.

Exceptions from Superior Court, Suffolk County; Franklin G. Fessenden, Judge.

Separate actions of tort by one Hyde against the city of Boston and against the Boston Elevated Railway Company. In each case the court directed a verdict for defendant, and plaintiff excepted. Exceptions sustained.M. J. Creed, J. Porter Crosby, and Walter A. Buie, for plaintiff.

Philip Nichols, for defendant city of Boston.

Endicott P. Saltonstall, for defendant Boston Elevated Railway Co.

MORTON, J.

These are two actions of tort-one against the city and the other against the elevated railway company-for personal injuries sustained by the plaintiff in December, 1899, while traveling on that portion of a highway called ‘Roxbury Street,’ in Boston, occupied by the railway company's tracks. The actions were tried and have been argued together. At the close of the evidence the court ruled that the plaintiff could not recover in either action, and directed verdicts for the defendants. The cases are here on exceptions by the plaintiff in each case to this ruling.

It appeared that a deep trench had been excavated in the street for the purpose of laying a drain from a building in the process of erection to the main sewer. The trench extended under the railway track, and it was admitted that the drain was being laid under a permit from the city to one Shaughnessey. The evidence tended to show that the trench had been there four or five days. At the time of the accident the sidewalk and the street in front of the building were obstructed so that it was impossible to pass along the sidewalk, or the street between the sidewalk and the first railway track. The plaintiff had occasion to go from a point on Gardner avenue which came into Roxbury street on the same side as that on which stood the building that was in process of erection to a point on said street beyond the building, and also on the same side. To get around the obstructions, she went out into the street, and along the railway track. While walking along the track she sank into the trench, which was full, or nearly full, of soft mud, and received the injuries complained of. There was testimony tending to show that cars were passing through the street, and teams also, and travelers, on the side opposite from the building. The testimony was contradictory whether there were any barriers and notices, and, if so, what and where they were; and also whether any warning was given to the plaintiff, and whether there were any men at work in the trench when the accident occurred. There was also contradictory evidence as to the appearance and condition of the trench; the plaintiff and some of her witnesses testifying that it was filled up level with the street, and looked like the rest of the street, which was wet and slippery from the rain, and the defendant's witnesses contradicting this.

The first question is whether the plaintiff was in the exercise of due care. We think that it could not be ruled as matter of law that she was not. The street, as already observed, was not closed to travel. The street cars were running through it, and teams and travelers were passing on the side opposite to that on which the building was in the process of erection. The obstructions extended only to the first track, and were not such in character or extent as necessarily to show the plaintiff that in attempting to pass through the street she did so at her own peril. Sampson v. Boston (Mass.) 67 N. E. 866;Leonard v. Boston, 183 Mass. 68, 66 N. E. 596;Butman v. Newton, 179 Mass. 1, 9, 60 N. E. 401,88 Am. St. Rep. 349;White v. Boston, 122 Mass. 491. The circumstances were materially different from those in the cases of Jones v. Collins, 177 Mass. 444, 59 N. E. 64, and Compton v. Revere, 179 Mass. 413, 60 N. E. 931, relied on by the defendant city, and which are therefore not applicable. The plaintiff testified, amongst other things, that she was prevented from passing along the sidewalk or between the sidewalk and the tracks, by reason of the obstructions; that she took what she thought was the best and nearest way, and was looking down and ahead to see where she could walk best, when she stepped into the mudhole; and that she did not see any barrier or hear any warning. The testimony, as already observed, was contradictory whether there were any barriers or notices, and, if any, where and what they were, and also on the question whether any warning was given. It is clear, it seems to us, that the question whether she was in the exercise of due care should have been left to the jury. So, also, we think, should the question, which is the next one-whether the defendant city exercised reasonable care and diligence to keep the street safe for...