Kelly v. City of Springfield
| Decision Date | 01 November 1951 |
| Citation | 328 Mass. 16,101 N.E.2d 352 |
| Parties | KELLY v. CITY OF SPRINGFIELD. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Joseph E. Kerigan, Springfield, for plaintiff.
Charles D. Sloan, City Solicitor, Springfield, for City of Springfield.
Before QUA, C. J., and WILKINS, SPALDING, WILLIAMS and COUNIHAN, JJ.
In this action of tort to recover for injuries sustained when she fell on a public sidewalk, the plaintiff had a verdict. The case comes here on the defendant's exception to the denial of its motion for a directed verdict.
The sole ground urged by the defendant in support of its exception is that the evidence would not warrant a finding that it knew or in the exercise of proper care and diligence ought to have known of the defect in time to have remedied it. We shall confine our decision to this question. A summary of the evidence bearing on this point is as follows: The accident happened on the afternoon of September 27, 1947, while the plaintiff was walking on a sidewalk on Maple Street, Springfield. The sidewalk is made of cement slabs about six feet square. Maple Street is in a 'strictly residential neighborhood.' The plaintiff's injuries resulted from a fall caused by her tripping on a slab which was upraised one and three quarters inches on the east side of the walk and three quarters of an inch on the west side. A witness called by the plaintiff testified that 'she noticed the raise in the sidewalk a couple of days before the accident.'
An essential element of the plaintiff's case was to prove that the defendant had 'or, by the exercise of proper care and diligence, might have had reasonable notice of the defect'. G.L.(Ter.Ed.) c. 84, § 15. Stone v. City of Boston, 280 Mass. 31, 33-34, 181 N.E. 746; Adams v. Town of Bolton, 297 Mass. 459, 465, 9 N.E.2d 562; Bagdikian v. City of Worcester, 318 Mass. 707, 708, 63 N.E.2d 892. The purpose of this provision is to afford a reasonable opportunity to remedy the defect. Since there was no evidence that the defendant had actual notice of the defect, the question narrows down to whether the evidence would support a finding that by the exercise of proper care and diligence it ought to have known of it.
The defendant argues that the proof here shows only that the defect had existed for ' a couple of days' prior to accident and that, in view of the fact that the sidewalk was located in a section of the city where the travel was light,...
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