Stoddard v. Town of Winchester

• Decision Date: 04 January 1893
• Citation: 157 Mass. 567,32 N.E. 948
• Parties: STODDARD v. TOWN OF WINCHESTER
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

157 Mass. 567

32 N.E. 948

STODDARD v. TOWN OF WINCHESTER

Supreme Judicial Court of Massachusetts, Middlesex.

January 4, 1893

William T. Dotten was called by the plaintiff to prove his authority in conducting the work, and testified that he was the superintendent of the waterworks of said town, duly appointed by the water board, and duly authorized to lay the water pipe in said Lincoln street. On cross-examination by the defendant he stated that he had had a great deal of experience in laying water pipes, and also on the South Reservoir dam in said town, and that the trench on Lincoln street was refilled by throwing the earth into the water in the trench, and that this process was called "puddling," and that puddling was the best method of filling trenches. The witness further testified that "when the earth in the ditch had settled down, the water all settled out of it, and became solid. Then we went over it and graveled every cavity there was; leveled it all up. Afterwards, early in July, I drove my horse over it--a big horse--from end to end. It was perfectly solid." That the street was used constantly afterwards during the summer and fall. "You couldn't detect anything but what it was perfect and all right; no dampness or moisture, or nothing to indicate any trouble." On redirect examination he was asked by the plaintiff if there was not a soft spot or place, full of loam and soft material, found on the line of the South Reservoir dam during the building of the dam. He answered that there was such a place found there. The following questions were then put by plaintiff "Question. Now, they were careful there, weren't they, to go clear down to rock bottom, and take that soft stuff all out? (Objected to by defendant, and ruled out by the court, and excepted to by plaintiff.) Q. If the soft spot on this Lincoln street was like that on that dam wouldn't it have been reasonable and proper care on the part of you and those under you to remove that loam and soft stuff out of that spot, and put in good, hard gravel? (Ruled out by the court, and exception taken by plaintiff.)"

COUNSEL

John T. Wilson, for plaintiff.

Samuel J. Elder, for defendant.

OPINION

KNOWLTON J.

In the opinion which was given in this case when it was first before us are these words: "The fact that a road is so constructed that it is not likely to keep in good condition for a great length of time will not impose liability on the town, which is bound to keep it in repair, unless the danger is so imminent that it can fairly be said to show a want of reasonable care and diligence to omit guarding against it at once." Stoddard v. Inhabitants of Winchester, 154 Mass 149, 27 N.E. 1014. There was abundant evidence to warrant the jury in finding the road defective, within the principle thus stated. The accident occurred on November 27, 1888, on a steep incline, where a trench had been dug during the last week in May of the same year. There was evidence that this trench was 41/2 to 5 feet deep, and that a great deal of water came into it from the sides or bottom, so that to lay the pipe the workmen were obliged to dam up the trench to hold the water in different sections while laying pipe below; and when the pipe was laid in the section below they were accustomed to take away the dam, and let down the water, and afterwards fill up the trench by throwing earth into the water, and in some portions treading it down. There was evidence that they could not tread down some portions of it, owing to the water, and the soft condition of the filling. There was also evidence that there was a soft spot when they dug the trench near the place of the accident, and that the loam and soft material that came out of that spot were thrown back upon the water in the trench, and that the men did not tread that down through fear of going in themselves. The superintendent of the waterworks, who had charge of laying the pipe, and who visited the place once or twice a day, denied that there was such a soft spot as testified to by other witnesses, but said, if there was such a spot, filling in with loam would not make a safe job, and that a proper way to do the work would be to remove the loam, and put in gravel. The weather was dark and stormy at the time of the accident, and there had been a steady fall of rain for the two days immediately before. The horse suddenly sank into the roadbed, going in up to his crupper, with his nigh forward foot...