Olson v. City of Worcester

• Court: Supreme Judicial Court of Massachusetts
• Writing for the Court: MORTON, C.J.
• Citation: Olson v. City of Worcester, 142 Mass. 536, 8 N. E. 441 (Mass. 1886)
• Decision Date: 22 October 1886
• Parties: OLSON v. CITY OF WORCESTER.

142 Mass. 536

8 N.E. 441

OLSON v. CITY OF WORCESTER.

Supreme Judicial Court of Massachusetts, Worcester.

October 22, 1886

COUNSEL

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; Billings v. Worcester, Id. 329. And the necessary implication of these cases, if not the proposition adjudicated by them, is that evidence of knowledge of such previously existing and causing defect is not competent as tending to prove knowledge of the principal defect. St.1877 c. 234, § 2, does modify the liability of towns. See Post v. Boston, 141 Mass. 189; S.C. 4 N.E. 815. It is contended, therefore, that it was error to instruct the jury upon the question of reasonable notice of the defect, that they might take into account a cause outside the street over which the city had no control, but of which it had, or might by the exercise of care and diligence have had, notice.

E.B Sprague and David Manning, for plaintiff.

OPINION

MORTON C.J.

By the existing statutes a town or city is liable for an injury caused by a defect in a way if the injury might have been prevented by reasonable care and diligence on the part of the town or city, and if the town or city had reasonable notice of the defect, or might have had notice thereof by the exercise of proper care and diligence on their part. Pub.St. c. 52, § 18.

The degree of diligence required of officers of a town or city in watching the way, and guarding against defects, depends, in some measure, upon the character of the way. If there are known causes in operation likely to produce a defect in the way, the diligence required is greater than might be sufficient under other conditions. It is reasonable that the officers should keep a more watchful eye...