Norwood v. City of Somerville

• Decision Date: 17 May 1893
• Citation: 159 Mass. 105,33 N.E. 1108
• Parties: NORWOOD v. CITY OF SOMERVILLE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

159 Mass. 105

33 N.E. 1108

NORWOOD v. CITY OF SOMERVILLE.

Supreme Judicial Court of Massachusetts, Middlesex.

May 17, 1893

The presiding justice refused to give defendant's instruction that "the stretching of a rope around the trench, at a distance of two feet from the edge of the trench, and at a height of three feet above the ground, supported by iron posts driven into the ground, and with lanterns upon the posts sufficiently near to each other to give notice to travelers that there was an obstruction there, would be a sufficient and suitable barrier to be erected by the city, and prevent liability on its part."

COUNSEL

O.A Galvin, for plaintiff.

S.Z Bowman, for defendant.

OPINION

BARKER J.

1. The presiding justice was right in refusing to rule that there was not sufficient evidence to go to the jury, that there was no intention to mislead the city by the notice given, and that the city was not in fact misled, and in submitting those questions to the jury. There was evidence that the plaintiff was hurt on the 2d day of November by falling into an open trench dug by workmen employed by the city for the purpose of laying water pipes, and under the supervision and orders of the city superintendent of waterworks. The notice did not specify the place of injury, except by stating that the plaintiff fell into this trench in Cedar street, and it appears that the trench was so long as to make this specification indefinite. But there was also evidence that on the day following the accident the superintendent of waterworks was notified of it, and the place where the plaintiff fell pointed out to him, and that he called at the plaintiff's house, and saw her, and was there informed of the accident, and of the place where it occurred; and also that some of the workmen on the trench heard of the accident on the following day. The city introduced no evidence that it was in fact misled, or that its street authorities or law officers remained in ignorance of the accident. While notice to the superintendent and to the workmen may not have been notice to the city, the jury might, under these circumstances, find that there was no intention to mislead, and that the city was not in fact misled.

2. The question whether the plaintiff was in the exercise of due care was properly submitted to the jury, and the instructions given upon this branch of the case were accurate, and were sufficiently full. The jury...