Whitford v. Southbridge

• Decision Date: 04 March 1876
• Citation: 119 Mass. 564
• Parties: Amelia K. Whitford v. Inhabitants of Southbridge
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

119 Mass. 564

Amelia K. Whitford v. Inhabitants of Southbridge

Supreme Court of Massachusetts

March 4, 1876

Argued October 7, 1875 [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material]

Worcester. Tort for personal injuries alleged to have been sustained by the plaintiff in consequence of a defect in a highway in the defendant town. Trial in the Superior Court, before Dewey, J., who allowed a bill of exceptions in substance as follows:

The street had originally been laid out and constructed by the Hamilton Woollen Company, and in 1846 was laid out and accepted by the defendant.

The plaintiff offered evidence tending to show that she was a person seventy-two years old, residing with her son, who owned the premises abutting on the highway at the place of the accident; that she came out of her son's house and went down a flight of three steps, which led down from the bank on which her son's house stood to the location of the highway, and proceeded along a part of the location used as a sidewalk; that such walk was ledgy, uneven and unsafe, and that while on this part of the way, opposite her son's premises, and using due care, she fell and was hurt. Her own testimony as to the occurrence of the accident was as follows: "I came down the steps and walked three or four feet on the sidewalk, going north down the street, and I fell; my feet went against something, I do not know what; and broke two bones right in my ankle joint. I was going careful as I could. I was walking right on the sidewalk. I don't know but I stepped on something, and I don't know as I did." On cross-examination she testified: "It never has been a safe place. I knew perfectly well its character. I considered it a bad place. I don't think it ever has been a safe place. I always felt it was a bad sidewalk for any one to go on. I was not thinking particularly about it at the time."

The plaintiff also offered testimony tending to show that she was found lying on the sidewalk, with her leg broken, in the position in which she described herself as lying, about two feet from the north end of the steps. This was all the evidence as to the mode of the occurrence of the injury.

The plaintiff further offered evidence of persons accustomed to pass that way and living on the street, that at the time of the accident, and for many years before, the greater part of the foot travel passed along said portion of the location. Evidence was also introduced as to the situation and condition of said sidewalk at and prior to the time of the injury to the plaintiff; and that one Whitford, the adjacent owner, wheeled some material from his garden, which he spread over the ledgy part above described, and that afterwards a person, who was mending the road for the town, removed some material, using the gravel to crown up the middle of the street, and carrying off the stones which remained to a distant place. The plaintiff contended that this was to improve the walk. The defendant contended that it was not to improve the walk, and had no such effect, but was a mere taking of materials found within the location to improve the wrought part of the road.

The plaintiff also offered evidence tending to show that the town had laid out and constructed a sidewalk on that side of the street, northerly of the point in question, extending from Main Street to a point about forty or fifty feet from the place of the accident; that, from the point where the sidewalk so constructed terminated, a smooth foot-path extended to the uneven and ledgy place on which the accident happened; that said uneven and ledgy place extended about twenty feet, and southerly of said place a smooth, even path extended some distance further south; that between the carriage way and the sidewalk so constructed by the defendant, a gutter had been made and paved by the defendant, and that a depression, of substantially the same shape and size as the paved gutter, extended south from the paved gutter between the carriage way and the smooth path leading from said sidewalk to said uneven, ledgy place, and extending past the ledgy place and past the smooth path south of the ledgy place, and forming a continuous gutter or watercourse between the carriage way and the walk on the side of the road; that said sidewalk, so constructed by the town, and the smooth paths northerly and southerly of the said uneven and ledgy place, and the uneven and ledgy place itself, were substantially one continuous grade, and all on about the same grade relatively to the carriage way; that there was no method provided for the foot travel passing over the sidewalk constructed by the defendant to pass from the sidewalk to the carriage way at the point where said sidewalk terminated near the ledgy place, except by crossing the said gutter, without any bridge, flagging or other means of getting over.

The defendant offered evidence tending to show that the highway had a made way in the centre of the location wrought for and sufficient for the public travel; that the town had never laid out or wrought the remainder of the location, including the part where the plaintiff was travelling, for the public use; that it was visibly unsafe and unfit for the purpose, and known to be so by the plaintiff, and that the greater portion of the foot travel went over the wrought centre of the location, although sometimes persons passed over the part where the plaintiff was travelling.

Evidence was further offered by the defendant that the place in question was formerly, and after the construction of the road, a bank three or four feet above the level of the wrought portion, and that an adjacent owner had many years before removed the earth from said bank, leaving the ledge bare, and put steps from his premises down to the walk, and had not levelled the walk or fitted it for travel.

The defendant requested the judge to instruct the jury as follows:

"1. The evidence in the case is not sufficient to entitle the plaintiff to recover.

"2. There is no evidence which tends to show that the injury of which the plaintiff complains was caused by any defect in the highway.

"3. There is no evidence which warrants the jury in finding that the portion of the way where the plaintiff claims to have been injured was held out by the defendant as designed for public travel.

"4. There was no evidence upon which the jury would be warranted in finding that the plaintiff was in the exercise of due care.

"5. If the town had prepared within the limits of the location of the highway, a strip of twenty-five feet in width, being a reasonable and proper width, and sufficient in all respects for all purposes of public travel, both as regards safety and convenience, they were not bound to prepare the entire width of the location of forty feet for such purpose.

"6. The town was not bound to prepare for the inhabitants of adjoining estates the means of getting from their estates upon the location of the highway, or of crossing that portion of the highway not designed, wrought or appropriated for public travel, from their adjoining estates to the portion of the way so designed, appropriated or wrought, and if a person coming upon the highway from an adjoining estate in crossing to the part of the way so wrought, designed or appropriated and before reaching the same, sustains an injury, the town is not liable.

"7. If the jury shall find that the town constructed and maintained within the location a safe and convenient way of sufficient width and suitable in all respects for all purposes of public travel, leaving a bank between such way and the limit of the location unfit and unsuitable for travel, and several feet higher in grade than the way so prepared, and the owner of the adjacent premises removed the earth from said bank, leaving between said wrought way and said limit a ledge of rocks, uneven, sharp and unfilled, and unsafe and inconvenient for such travel, and the town did no act, either to repair or work upon said ledge, or in any manner to adopt or recognize it as used, fitted or appropriated for public travel, the mere use of it by persons knowing or having reason to believe all these facts, but choosing to take whatever risk might attend walking over such ledge, would not render the town liable for failure to make the same safe and convenient, even if such acts had been so extensive or long continued or notorious that the town may be presumed to have knowledge of it.

"8. A town is not liable for defects and obstructions within the bounds of the way as laid out; but outside of the travelled path.

"9. To make the town liable for failure to render safe and convenient a portion of the way never wrought or designed by it for travel, there being a sufficient way so wrought and designed by it within the location by reason of the use of such portion by the public, there must be such a long continued public and notorious use and enjoyment by the public as to amount to a recognition of it as a wrought and completed part of the way.

"10. The town is not liable for a failure to make safe and convenient a portion of the location outside the travelled path, merely because, with the knowledge of the town and without its objection, such portion is used for public travel, if such public travel is only by persons who know the elevation and condition of the street, and have reason to know when they use it that the same was not designed or appropriated by the town for such use.

"11. If the plaintiff, knowing that the part of the way on which she was travelling was unsafe and inconvenient, and had never been adapted by the town for travel, elected to travel along the same, instead of proceeding directly to the...