Stanton v. City of Salem

Decision Date04 January 1888
Citation145 Mass. 476,14 N.E. 519
PartiesSTANTON v. CITY OF SALEM.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

OPINION TEXT STARTS HERE

Exceptions from superior court, Essex county; BACON, Judge.

Tort for personal injuries to plaintiff, Mary E. Stanton, by falling on the ice on the sidewalk on Winter street, in the defendant city of Salem. At the trial in the superior court, the verdict was for defendant, and plaintiff alleged exceptions. The facts are stated in the opinion.

D.W. Quill, for plaintiff.

It was a question of fact, to be submitted to the jury, whether the ice on the sidewalk was a defect for which the defendant would be liable, or whether the plaintiff was in the exercise of due care at the time of the injury. Bigelow v. Inhabitants of Rutland, 4 Cush. 247. It is the duty of a judge to submit to the jury the question of due care of the plaintiff, if there is any evidence to justify a finding, although in his opinion, its preponderance should be against the plaintiff. Meesel v. Railroad Co., 8 Allen, 234;Fox v. Sackett, 10 Allen, 535;Williams v. Grealy, 112 Mass. 79;Reed v. Inhabitants of Deerfield, 8 Allen, 522;Gaynor v. Railway Co., 100 Mass. 208;Linnehan v. Sampson, 126 Mass. 506;Hall v. City of Lowell, 10 Cush. 260;Burt v. City of Boston, 122 Mass. 223. Ice or snow suffered to remain upon a sidewalk in such an uneven and rounded form that a person could walk over it, using due care, without danger of falling down, may be found by the jury, in an action against the town or city, to be a defect for which the defendant is liable. Luther v. City of Worcester, 97 Mass. 268;Stone v. Inhabitants of Hubbardston, 100 Mass. 49;Morse v. City of Boston, 109 Mass. 446;McAuley v. City of Boston, 113 Mass. 503;Pinkham v. Inhabitants of Topsfield, 104 Mass. 78;Williams v. City of Lawrence, 113 Mass. 506;Street v. Inhabitants of Holyoke, 105 Mass. 82. In Olson v. City of Worcester, 142 Mass. 536, 8 N.E.Rep. 441, the court says: “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 its part.”“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.” Pub.St. c. 52, § 18. In the case at bar, it appears from the testimony of the plaintiff and her witnesses that the ice on which she fell was old ice, and must have been on the sidewalk for a considerable length of time before the time of the injury. Post v. City of Boston, 141 Mass. 189, 4 N.E.Rep. 815; Blake v. City of Lowell, 143 Mass. 296, 9 N.E.Rep. 627. It was negligence on the part of the defendant to allow a piece of ice, three feet long, a foot and a half in width, and one and a half inches thick, to remain on the sidewalk in one of its public ways. In Billings v. City of Worcester, 102 Mass. 329, the court says: “The fault for which the town is chargeable consists in permitting the defect to remain; not in causing it to exist.”“It is not enough for the exemption of the town that it has exercised reasonable care, or even the utmost diligence, to make its ways safe, if they are in fact not so.” See Fitzgerald v. Inhabitants of Woburn, 109 Mass. 204.

F.L. Evans, for defendant.

The plaintiff must show that at the time she was injured she was a traveler upon the highway, within the meaning of the statute. Upon this point she did not sustain the burden of proof. The bill of exceptions states that at the time she was injured she was walking on the sidewalk.” This is not enough. What the plaintiff was doing; where she was going; the purpose for which she was using the sidewalk; the manner in which she was walking; whether she at all observed the condition of the sidewalk,-such inquiries were material upon this question. She might have been walking upon the sidewalk, and still not have been a traveler, within the meaning of the statute. Blodgett v. Boston, 8 Allen, 237;Tighe v. Lowell, 119 Mass. 472; Stinson v. Gardiner, 42 Me. 248; Hardy v. Keene, 52 N.H. 370;Harper v. Milwaukee, 30 Wis. 365;Hunt v. Salem, 121 Mass. 294; McCarthy v. Portland, 67 Me. 167.

There is no testimony that the plaintiff, at the time she was injured, was in the exercise of due care. No fact is stated from which this can be inferred. It does not appear that the plaintiff did not see the ice, nor that she might not easily have avoided it. There is nothing in the bill of exceptions which affirms or indicates the exercise of care. The case of Wilson v. Charlestown, 8 Allen, 137, is in point. The fact that the sidewalk, to the width of three feet on either side, was entirely clean, and could have been used safely and conveniently, tended to prove a want of due care on the plaintiff's part.

Upon the facts stated, there was no defect for which the city would be liable. Street v. Holyoke, 105 Mass. 82;Raymond v. Lowell, 6 Cush. 533;Stanton v. Springfield, 12 Allen, 570;Nason v. Boston, 14 Allen, 508;Gilbert v. Roxbury, 100 Mass. 185.

If upon the testimony, the jury might have found that the cause of the plaintiff's fall was a defect in the sidewalk, then the burden was upon the plaintiff to show that the...

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3 cases
  • Miller v. Village of Mullan
    • United States
    • Idaho Supreme Court
    • October 15, 1909
    ... ... 2263 of the Rev. Codes, requiring that an ... itemized statement of a claim against a city or village duly ... verified by the oath of the claimant must be presented to the ... city or ... (Elliott on Ev., sec. 2513; Hanscom v ... Boston, 141 Mass. 242, 5 N.E. 249; Stanton v ... Salem, 145 Mass. 476, 14 N.E. 519; Cook v. City of ... Anamosa, 66 Iowa 427; 23 N.W ... ...
  • Warren v. City of Tupelo
    • United States
    • Mississippi Supreme Court
    • March 4, 1940
    ...one had seen it, or that any city officer knew of it, or could by reasonable diligence have seen it, before the accident. Stanton v. Salem, 145 Mass. 476, 14 N.E. 519." view we have here announced is strengthened by the fact that the owner of the land who visited the place often, and who ha......
  • Jones v. City Of Greensboro
    • United States
    • North Carolina Supreme Court
    • March 28, 1899
    ...one had seen it, or that any city officer knew of it, or could by reasonable diligence have seen it, before the accident. Stanton v. Salem, 145 Mass. 476, 14 N. E. 519. "A city is not charged with notice of a defect in a sidewalk which is not apparent to the ordinary observer, and whose exi......

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