Olson v. City of Worcester

Decision Date22 October 1886
Citation142 Mass. 536,8 N.E. 441
PartiesOLSON v. CITY OF WORCESTER.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

OPINION TEXT STARTS HERE

Action of tort for injuries sustained by a fall on a public street of the defendant city. At the trial in the superior court, before KNOWLTON, J., the plaintiff offered evidence tending to show that there was a ridge or accumulation of ice on which she fell, extending over the sidewalk from the outlet of a water conductor which reached from the eaves of an adjacent building to the sidewalk, and which emptied its waters onto the sidewalk, and had been there a long time.

The court, upon the question of what notice of the defect it was necessary to show that the defendant had prior to the accident, instructed the jury as follows: “It is not enough to show that the city had notice of a spout discharging water there, unless you find, with that, that the city had notice, or might have had notice, by the exercise of reasonable care and diligence, of this precise defect, to-wit, the ice which was on the sidewalk; but upon the question whether the city might, by the exercise of such reasonable care and diligence, have had notice of the ice, you may think it very important if there was a spout calculated to discharge water upon the sidewalk, and of which you may think the city had notice, or might have had notice, by the exercise of reasonable care and diligence.” The defendant's counsel excepted to this part of the charge, and said that the exception was not to any particular expression in it, but to that portion as a whole which permitted the jury to consider, upon the question of notice, the existence of the spout. The judge then restated the proposition which he intended to lay down, as follows: “You may take into account concerning it whatever there was, if anything, which would indicate to the city the probability of an accumulation of ice in a time of storm, or in a time of thaw.” The jury found for the plaintiff, and the defendant alleged exceptions.

F.P. Goulding, for defendant.

The phrase “or might have had notice thereof by the exercise of proper care and diligence,” in St.1877, c. 234, § 2, (Pub.St. c. 52, § 88,) did not add anything to the meaning of the statute previously in force in respect to the notice of a defect necessary to hold a town or city or other person or corporation liable for the condition of a public way. The new statute expressed what the court had held to be implied in the old one. Donaldson v. Boston, 16 Gray, 508, 511;Howe v. Lowell, 101 Mass. 99;Harriman v. Boston, 114 Mass. 241, 243;Monies v. Lynn, 119 Mass. 273;Whitehead v. Lowell, 124 Mass. 281;Foster v. Boston, 127 Mass. 290.

In various cases the court has held that the evidence must tend to show notice of the identical defect, and that evidence that there was another defect, which was the cause of the principal defect, and which the defendant knew of, is not sufficient. Ryerson v. Abington, 102 Mass. 526; ...

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2 cases
  • Bleistine v. City of Chelsea
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • January 7, 1910
    ...the way unsafe, the duty devolves upon the municipality to take every suitable precaution to guard against the danger. Olson v. Worcester, 142 Mass. 536, 537, 8 N.E. 441; Fleming v. Springfield, 154 Mass. 520, 28 N.E. 26 Am. St. Rep. 268; Campbell v. Boston, 189 Mass. 7, 75 N.E. 96. If, how......
  • Olson v. City of Worcester
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • October 22, 1886

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