Purple v. Inhabitants of Greenfield

• Decision Date: 25 October 1884
• Parties: Isabella J. Purple v. Inhabitants of Greenfield
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

138 Mass. 1

Isabella J. Purple v. Inhabitants of Greenfield

Supreme Judicial Court of Massachusetts

October 25, 1884

Argued September 16, 1884. [Syllabus Material] [Syllabus Material] [Syllabus Material]

Franklin.

Tort for personal injuries occasioned to the plaintiff, on July 9, 1881, by an alleged defect in a highway in the defendant town. Trial in the Superior Court, before Staples, J., who allowed a bill of exceptions, in substance as follows:

The place where the plaintiff was injured was an opening in front of a cellar window in a building owned, but not occupied, by one Hovey, about ten feet distant from the corner of Main Street and Federal Street, two of the principal streets in the business portion of the defendant town. The opening was about one foot and two inches wide, two and a half feet long, and one foot and seven inches deep; and was one of the means of lighting and ventilating the cellar of the building. It was surrounded by a stone curbing, the upper surface of which was even with the surface of the sidewalk, which, at the place of the accident, was about ten feet wide. The line of the located highway, as contended by the plaintiff, was about six inches from the nearest edge of said opening, and, as contended by the defendant, about sixteen inches. There was nothing in the sidewalk to indicate the line of the highway. The sidewalk was of brick, and was of uniform surface on both sides of the line of the located highway, except at the opening in front of the cellar window, and extended up to the east line of Hovey's building. Immediately adjoining the outer edge of the sidewalk, on Federal Street and northward, and about fifteen feet from the opening, was a fruit-stand about seven feet long. There were two other openings on Federal Street, just outside the east line of the building, similar to the opening where the plaintiff was injured.

At the place of the accident, the owner of the adjoining premises had, in the year 1880, relaid the sidewalk with brick from the side of his building to the curbstone. The opening in question at the time of the accident was not covered; and the plaintiff, who had started to go from her home on Federal Street to the post-office, while standing near said opening in conversation with a friend, stepped back and into said opening, and received the injuries complained of.

The owner of the premises was called as a witness by the defendant, and was asked by the plaintiff if he had not been notified to defend this action, and he answered that he had been so notified.

The plaintiff testified as follows: "I was walking down Federal Street and met a lady friend, and stopped to speak with her. A little boy came along on a velocipede, and I stepped back out of his way. It came very near to me, and I stepped back out of his way into this cellar-window hole. It was the one nearest the Main Street. I was standing, when this boy came along, with my back to the hole. I was standing near to it. I do not think I stepped back but one step. I was talking with Mrs. Clark. I had talked with her but a few minutes."

Mrs. Martha A. Clark testified: "There was something came along, and we stepped back to let it pass. It was a boy on a bicycle, or a woman or a man, or something, and she stepped back into the hole. There was no board over the hole. We had been standing there not ten minutes in all." On crossexamination, she testified that she did not remember whether it was a boy on a velocipede, or a man on a bicycle, or a woman. "I did not take enough notice of it. I was conversing with this lady, and something came along and we stepped back. I do not know whether it was slow or fast."

One Walker testified that he lived on Federal Street, and had lived there for eleven years; that, so far as he knew, the opening had been there ever since he had lived on the street; that, so far as he knew, the openings had been covered the same as now, with the same coverings; that he could not say they had not been covered all the time.

George H. Hovey, the owner of the building and adjoining premises, testified for the defendant: "The present brick sidewalk was repaired in 1880. There was a walk there before. I relaid the curbing. Some of the stones were there before I relaid it. The hatchway was there a long time. All the openings there were just the same. I have owned it fifteen or twenty years. Before I repaired the walk, there never had been anything over the hole. In 1880 I put boards over the hole, and they have been kept there ever since. I have never known them to be off. I go by there six, seven, or eight times a day. I have occasion to look after the openings. I know they have been kept covered." On cross-examination, he testified: "I do not know that the boards on the hole now are the same that were on since 1880. I do not think they are. I do not know about it. They may have been damaged for all I know. I do not have the supervision of it myself, but, after I repaired, I put boards over the hole, and have requested that they be kept there ever since. The cellar at the time of the accident was rented with the store. The window was to give light and ventilation to the cellar. I had no control of the cellar or store."

Seorem B. Slate testified that he had been chairman of the selectmen since 1880. "I remember the time of this accident. From 1880 to the time of the accident the cellar window was covered with boards, -- loose boards generally there. I cannot say that I have ever seen it uncovered, but may have. I have no recollection of ever seeing it open." On cross-examination, he testified that he lived in the north part of the town, about four miles off, and had occasion to come down often; not every day of the week. "I had noticed this spot only as I had occasion to pass it."

Charles Pierce testified for the plaintiff: "I live on Federal Street. I go by this spot daily. The window holes have been there ever since I can remember. I never saw the openings covered till after this suit was begun." On cross-examination, he testified, "I have no clear recollection of the matter."

The counsel for the defendant argued that the owner or occupant of the building was liable for the injury; that it was hard that the town should be compelled to pay for the fault of the owner...