Regan v. John J. Amara & Sons Co.
| Decision Date | 02 April 1965 |
| Citation | 348 Mass. 734,205 N.E.2d 705 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
| Parties | Mary F. REGAN, executrix, v. JOHN J. AMARA & SONS COMPANY. |
Frank P. Hurley, Boston, for defendant.
Thomas B. Shea, Boston, for plaintiff.
Before WILKINS, C. J., and SPALDING, CUTTER, SPIEGEL, and REARDON, JJ.
This is an action of tort brought originally by Margaret T. Watson (plaintiff) to recover compensation for personal injuries sustained by her on October 23 1958, as a result of a fall on Washington Street, a public way in the Dorchester section of Boston. 1 The amended declaration is in two counts; one against John J. Amara & Sons Company (Amara), and the other against the Boston Gas Company (Gas Company). The action was consolidated for trial with a companion case brought by the plaintiff against the city of Boston. The jury returned verdicts for the executrix against Amara and the city, and found for the defendant on the count against the Gas Company.
The first count charged Amara with negligence in the performance of its duty 'to keep * * * [Washington Street] in a reasonably safe condition for travellers to pass thereover.' More specifically, it averred that a 'defective and dangerous condition' existed 'without any barrier * * * or other proper warning.' At the conclusion of the evidence Amara presented a motion for a directed verdict, which was denied, subject to its exception. This exception presents the sole question for decision.
There was evidence tending to show the following: On October 23, 1958, at about 8 P.M. the plaintiff fell in a 'depression consisting of a difference in the elevation between the road surface and a cast iron cover, circular in shape, about six inches wide, and bearing the imprint 'C,' causing a variation of about four to five inches in elevation, [and] causing a depressed condition adjoining the cast iron set-off or cover over an area of about two feet long by two feet wide by five to six inches in depth.' The circular casting was on a crosswalk on Washington Street, a heavily traveled way.
The condition of the casting, as well as the immediate surrounding road surface, was the result of work Amara had contracted to do for the city of Boston. The contract provided for the laying of new artificial stone sidewalks, resetting edgestones, raising water and sewer castings, and resurfacing the roadway. A permit was issued to Amara by the city on March 24, 1958. Work was begun on June 30, 1958.
On or about September 15, 1958, Amara notified various utility companies to raise their castings so that a final level of hot top could be spread over the roadway by Henry Baker & Company, a subcontractor of Amara for the resurfacing work. The purpose of the raising was to bring the castings up to the expected level of the roadway after the final coat of hot top was applied. On September 16, 1958, employees of the Gas Company raised the gas casting. It was necessary to excavate an area approximately a foot and a half deep and a foot and a half to two feet around the casting. After the casting was raised, concrete was poured to within an inch and a quarter of the top of the casting. Then a sand patch, which is a temporary method of evening off the surface of the casting and the roadway, was put over the concrete. This patch can be worn away by traffic and rain; 'it will just crumble up like sand.' While the concrete is fresh, it is the custom for the Gas Company and other utilities to protect the castings by barricades and lights. Amara never did this except for water and sewer castings. The depression which caused the plaintiff's fall was 'left exposed without any barrier or warning thereabout.' From September 16, 1958, until October 28, 1958, the date on which the final coat of hot top was applied, there was no change in the condition of the roadway.
The plaintiff's right to recover is grounded on the theory that Amara was negligent in not warning her of the condition of the roadway. The case at bar closely resembles Scholl v. New England Power Serv. Co., 340 Mass. 267, 270, 163 N.E.2d 279, 282, where we...
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Meyer v. Veolia Energy North America
...of notice is not applicable ... in an action against private corporations or individuals." Id. Accord Regan v. John J. Amara & Sons Co., 348 Mass. 734, 737, 205 N.E.2d 705 (1965) (no notice required under § 18 in suit against defendant private contractor that acted negligently in failing to......
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...its probative force by the trier of fact. O'Kane v. Travelers Ins. Co., 337 Mass. 182, 184, 148 N.E.2d 397. Regan v. John J. Amara & Sons Co., 348 Mass. 734, 737, 205 N.E.2d 705. It is contended, therefore, that the judge has no authority to exclude even inadmissible evidence unless it is o......
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...Freyermuth v. Lutfy, 376 Mass. 612, 616-617. (Mass.Adv.Sh. (1978) 2839, 2844), 382 N.E.2d 1059 (1978); Regan v. John J. Amara & Sons, 348 Mass. 734, 205 N.E.2d 705 (1965); O'Kane v. Travelers Ins. Co., 337 Mass. 182, 148 N.E.2d 397 (1958); W. B. Leach & P. J. Liacos, Massachusetts Evidence ......
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Com. v. Strahan
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