Monies v. City of Lynn

• Decision Date: 03 January 1876
• Citation: Monies v. City of Lynn, 119 Mass. 273 (Mass. 1876)
• Parties: Georgiana A. Monies v. City of Lynn
• Court: Supreme Judicial Court of Massachusetts

119 Mass. 273

Georgiana A. Monies v. City of Lynn

Supreme Court of Massachusetts

January 3, 1876

Argued November 3, 1875

Essex. Tort for personal injuries occasioned by an alleged defect in a highway in the defendant city.

At the trial in the Superior Court, before Brigham, C. J., it appeared that a sidewalk caved in in the night-time, and that about an hour and a half afterwards the plaintiff, while in the exercise of due care, fell into the hole. The plaintiff claimed to recover on the ground that the sidewalk had been undermined for twenty-four hours, and also on the ground that the city had notice of the defect. The evidence on the last point appears in the opinion. The jury found specially that the defect had existed for twenty-four hours, and returned a verdict for the plaintiff. The judge set aside the special finding, but refused to set aside the verdict. The defendant alleged exceptions to the refusal of the judge to rule that the evidence of notice was not sufficient to entitle the plaintiff to a verdict, if the defect had not existed for twenty-four hours; and the plaintiff alleged exceptions to the order setting aside the special finding.

Plaintiff's exceptions overruled; defendant's exceptions sustained.

E. T Burley, (E. J. Sherman with him,) for the plaintiff.

S. B Ives, Jr., for the defendant, was not called upon.

Ames J. Colt & Morton, JJ., absent.

OPINION

Ames, J.

Upon the assumption that the presiding judge, in the exercise of his discretion, had the right, if he thought justice so required, to set aside the special finding of the jury upon the question whether the defect in the street had existed for the space of twenty-four hours at the time of the accident the only remaining ground upon which the plaintiff's claim could be maintained would be that the defendant city had had reasonable notice of the defect. The evidence upon this point was that a boy of the age of sixteen years, who had been employed to light and extinguish the street lamps, and who had received a general direction from his superior to shut off the gas at midnight, was told of the existence of the defect just before the accident, and as he was in the act of extinguishing the lights. The plaintiff does not claim either that there was notice to any proper officer of the city whose duty it was to attend to municipal affairs, or that notice to the city can be inferred in this case from the notoriety or long continuance of the defect. It is to be remembered that the defendant was under no legal...