Monies v. Lynn

• Decision Date: 08 January 1877
• Parties: Georgiana A. Monies v. City of Lynn
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

121 Mass. 442

Georgiana A. Monies v. City of Lynn

Supreme Court of Massachusetts

January 8, 1877

Argued November 13, 1876

Essex. Tort for personal injuries occasioned by reason of an alleged defect in a highway, in the defendant city. After the former decision, reported 119 Mass. 273, the case was tried in the Superior Court, before Pitman, J.; the jury returned a verdict for the plaintiff; and the defendant alleged exceptions, the substance of which appears in the opinion.

Exceptions sustained.

S. B Ives, Jr., for the defendant.

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

Morton J. Colt, Devens & Lord, JJ., absent.

OPINION

Morton, J.

The plaintiff was injured by falling into a hole in the sidewalk of a street, which the defendant was bound to keep in repair. There was no evidence that the hole had existed for more than twenty-four hours, or that the city had notice of its existence.

The evidence tended to show that, about two weeks before the accident, the city had dug a trench across the sidewalk in order to connect the waste-pipe of a private building with the main sewer in the street; that, after the pipe was laid, the trench was filled up, and the bricks of the sidewalk relaid; that the pavement of the gutter was not replaced, but the paving stones and earth formed a dam at the place where the trench was dug, which prevented the water, after a rain, from flowing beyond it; that the hole made in the wall of the building for the pipe was not stopped up or cemented; that a rain occurred, and the water ran through the trench, carrying the earth into the cellar and undermining the sidewalk; and that, a few minutes before the accident to the plaintiff, another person broke through the sidewalk, producing the hole into which the plaintiff fell.

The court properly ruled that, if the earth under the sidewalk had for more than twenty-four hours been washed away, so as to make ordinary travel presently perilous, it was a defect, for which the city was liable.

The court further instructed the jury that, if the earth under the sidewalk "was in such a condition as that the same might reasonably be expected, through the continued action of such natural causes as were then operating, and such ordinary rains as might be expected to occur at that season of the year, at any hour, to wash out and produce such a cavity as that into which the plaintiff fell, then it is competent for the jury to find an existing defect, for which the defendant in this action may be held liable." The only question presented to us is as to the correctness of this ruling.

The ruling authorized the jury to find the defendant liable, although the defect which was the immediate cause of the plaintiff's injury had not existed for twenty-four hours, and although the sidewalk had not been in a dangerous condition for that length of time. It is based upon the idea that if a road is so constructed that the action of natural causes will produce a defect, and this might reasonably be expected, the town is liable, though it had no notice of such defect, and it had not existed for twenty-four hours. If the liability of towns depended upon the negligence of their agents in constructing or repairing roads, there would be force in this view.

But their liability is wholly created by statute, and is confined to cases where a person is injured through a defect of a way of which the town had notice, or which had existed for the space of twenty-four hours previous to the occurrence of the injury. Gen. Sts. c. 44, § 22. The statute establishes a fixed and arbitrary rule, independent of any question of the negligence of the town. If the defect which causes the injury has existed for twenty-four hours, the town is liable, even though it be a defect, such as is contemplated in the first instruction in this case, above referred to. But if such a defect has not existed for twenty-four hours, the town is not liable, unless it is shown that it had reasonable notice of it. We think it was the intention of the Legislature, as the language of the statute naturally imports, to limit the liability to cases where the precise defect which causes the injury is known to the town or has existed for twenty-four hours. To hold that a town is liable, though such defect had not existed twenty-four hours, upon the ground that its agents had constructed or repaired the way so negligently that it was...