Mitchell v. City of Springfield

• Decision Date: 10 November 1927
• Citation: 261 Mass. 188,158 N.E. 658
• Parties: MITCHELL v. CITY OF SPRINGFIELD.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

261 Mass. 188

158 N.E. 658

MITCHELL

v.CITY OF SPRINGFIELD.

Supreme Judicial Court of Massachusetts, Hampden.

Nov. 10, 1927.

Appeal from District Court of Springfield; Ralph S. Spooner, Special Judge.

Action of tort by Peter Mitchell against the City of Springfield to recover for bodily injuries arising from a defect in a sidewalk. Finding for plaintiff, and case reported. From an order of the appellate division of the district court dismissing the report, defendant appeals. Order dismissing report affirmed.

C. H. Beckwith, City Sol., and D. M. Macaulay, Asst. City Sol., both of Springfield, for appellant.

F. N. Newell, of Springfield, for appellee.

CROSBY, J.

This is an action to recover for bodily injuries arising from an alleged defect in a sidewalk on Jenks street, a public way in Springfield. There was evidence tending to show that the plaintiff, while passing over the sidewalk, stumbled and tripped in a depression in the walk where the cement had broken away and been removed, leaving a hole about two feet by one and one-half in area and two or three inches in depth.

[1] The plaintiff testified that at the time of the accident it was daylight, that the weather was fair, and that his sense of sight was not impaired; that the condition of the walk was the same as it had been for several months before the accident and that he had passed over it daily for several months; that he had observed the hole where he fell, and that before the accident ‘he had some days gone out into the road so as to avoid using this section of the walk on account of its condition.’ There was evidence that as a result of his fall his collar bone was broken.

It is not contended by the defendant that the walk was not in a defective condition. Its contention is that the evidence shows the plaintiff was not in the exercise of due care, and for that reason cannot recover. The fact that he had passed over the hole before and knew of its existence does not, as matter of law, preclude him from recovery. Apart from the provisions of the ‘due care’ statute (G. L. c. 231, § 85), it was a question for the jury whether the plaintiff was in the exercise of due care (Winship v. Boston, 201 Mass. 273, 87 N. E. 600;Page v. Weymouth, 207 Mass. 325, 93 N. E. 644;Callahan v. Dickson, 210 Mass. 510, 515, 96 N. E. 1029;Barron v. Watertown, 211 Mass. 46, 97 N. E. 622;Junkins v. Stoneham, 234 Mass. 130, 133, 125 N. E. 140). It follows that the defendant's first request for a ruling to the effect that the plaintiff was not...