Tavano v. City of Worcester
| Decision Date | 11 September 1934 |
| Parties | TAVANO v. CITY OF WORCESTER. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Superior Court, Worcester County; Whiting, Judge.
Action of tort by Maria Tavano against the City of Worcester. From an order for judgment in defendant's favor, on an auditor's report, plaintiff appeals.
Affirmed.
F. P. McKeon and N. Fusaro, both of Worcester, for appellant.
W. D. Allen, City Sol., of Worcester, for appellee.
The plaintiff fell while rightfully on a wooden loading platform located in a public street and used by fersons boarding or alighting street and used by persons boarding or alighting court who heard the case on the report of an auditor, made under a rule which provided that the auditor's findings of fact should be final, ordered judgment for the defendant on the report. The plaintiff appealed from that order. It was agreed by the parties that the defendant had the duty of maintaining the platform in a reasonably safe condition for travellers and that proper notice of the alleged defect was given to the defendant.
The auditor did not find, and apparently on the evidence was unable to find, the precise place on the platform where the plaintiff fell. The platform was sixty feet long and seven feet wide. The auditor found that it showed signs of wear, that there were some nails protruding above the surface, the extent of the projection not being found, that the surface of the boards was water-soaked and slippery, that in several instances one board was raised above an adjacent board, the difference in the level of adjacent boards sometimes varying from zero to one inch and in one instance amounting to two inches. The location of these described conditions on the platform was not in the report identified with reference to the spot where the plaintiff fell. The auditor found that ‘these were defects in the platform capable of causing the plaintiff's injury’ and that ‘otherwise, in a general way, the platform was in good repair.’ There is no finding which purports to describe the actual condition of the platform at the point where the plaintiff fell. It does not appear whether the plaintiff tripped or slipped. The cause of the fall was not specifically found. As to this the only finding is that ‘either the slipperiness of the boards or the irregularities of the surface, or the presence of some protruding nails interfered with the plaintiff's walking and caused her to fall.’ This is not a finding that the three conditions stated or any two of them in combination or any particular one of them caused the plaintiff's injury; it merely expresses the conclusionthat one of those conditions, which one the auditor was unable to determine, caused the fall of the plaintiff.
The auditor found for the plaintiff and assessed her damages. He did not specifically find that all or any of the three conditions, one of which caused her fall, amounted to defects. If we assume that he made such a finding by reason of the general finding for the plaintiff and his finding that the conditions recited in his general description of the platform were ‘defects * * * capable of causing the plaintiff's injury,’ still the plaintiff cannot recover. The city was under no obligation to furnish a perfect platform and fulfilled its statutory duty if the platform was reasonable safe and convenient for travel. The mere existence of a defect in a highway which is capable of causing injury to a traveller does not impose liability upon a city. Such liability is not established in a case founded on the highway statute unless it is...
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Hoffman v. City of Chelsea
...these special findings of fact were not such as to render the defendant's first request for a ruling immaterial. In Tavano v. Worcester, 287 Mass. 420, 422, 192 N.E. 22, 23, the court used the following language which is applicable to the present case, ‘The mere existence of a defect in a h......
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Hoffman v. City of Chelsea
... ... findings of fact were not such as to render the ... defendant's first request for a ruling immaterial. In ... Tavano v. Worcester, 287 Mass. 420 , 422, the court ... used the following language which is applicable to the ... present case: "The mere existence of a ... ...