Stewart v. Hugh Nawn Contracting Co.

• Decision Date: 10 April 1916
• Citation: 223 Mass. 525,112 N.E. 218
• Parties: STEWART v. HUGH NAWN CONTRACTING CO. STEWART v. CITY OF BOSTON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

223 Mass. 525

112 N.E. 218

STEWART

v.HUGH NAWN CONTRACTING CO.

STEWART

v.CITY OF BOSTON.

Supreme Judicial Court of Massachusetts, Suffolk.

April 10, 1916.

Exceptions from Superior Court, Suffolk County; Robert F. Raymond, Judge.

Actions by Ann E. Stewart against Hugh Nawn Contracting Company and the City of Boston. There were verdicts for plaintiff, and defendants excepted. Exceptions overruled.

R. G. Dodge and F. W. Johnson, both of Boston, for plaintiff.

Good & Mahony, of Boston, for defendants.

CROSBY, J.

The plaintiff, while crossing Boylston street in the city of Boston from the store numbered 332 on that street to the further side thereof where she intended to post a letter at a mail box located near the corner of Arlington street, was injured by reason of an alleged defect in the street.

The plaintiff testified that when she was crossing over the outbound street railway track, she stepped upon a plank lying next to the most northerly rail and ‘that the plank gave way under my foot and I caught-I twisted my ankle and caught my heel in the edge of the plank as it turned up and I lost my balance.’ At the time of the accident and for some time previous thereto the defendant company was engaged in the construction of a subway under Boylston street, and in the course of its work had removed the surface paving and had replaced it with a plank covered structure. This work was being performed by the defendant company under a contract with the Transit Commission acting under the authority of St. 1911, c. 741. The surface planking was composed of planks sixteen feet long, eight inches wide and four inches thick laid on cross beams and spiked at each end. There was evidence that the plank upon which the plaintiff stepped was raised above the level of the other planking; that it was loose, and, when stepped upon, moved in different directions. There was also evidence from which it could have been found that this part of Boylston street was open for public travel and had been open for such travel for several days. There was further evidence that the plank in question was loose during the last part of September before the accident, which occurred on October 9, 1913, and it could have been inferred that it remained in the same condition from the last part of September up to the time the plaintiff was hurt. In view of this evidence, we are of the opinion that the defendant city either knew of the defect in the way, if it was defective, or by the exercise of proper care and diligence might have had reasonable notice of its existence. R. L. c. 51, § 18. The city was not released from liability because the work was being done by a contractor employed by the Transit Commission. Connelly v. Boston, 206 Mass. 4, 91 N. E. 998;Torphy v. Fall...