Whitney v. City of Lowell

• Decision Date: 27 February 1890
• Citation: 151 Mass. 212,24 N.E. 47
• Parties: WHITNEY v. CITY OF LOWELL.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

151 Mass. 212

24 N.E. 47

WHITNEY v. CITY OF LOWELL.

Supreme Judicial Court of Massachusetts, Middlesex.

February 27, 1890

COUNSEL

Pratt & Quinn, for plaintiff.

Larkin T. Trull, City Sol., for defendant.

OPINION

KNOWLTON J.

The accident on account of which this suit is brought happened at about 10 o'clock in the forenoon, in a public square formed by the intersection of five streets, through which was a large amount of travel, and near the center of which was a watering-trough. All the evidence tended to show, and the plaintiff did not deny, that the man-hole was rightfully there, and was properly constructed, and that the cover which was about 20 inches across, was a proper and sufficient one. The cover was misplaced, and the plaintiff saw that the man-hole was open about half an inch, just as his horse was stepping upon it. The only defect on which the plaintiff relied at the trial was the misplacement of the cover; and the only question before us is whether there was any evidence that the defendant "had reasonable notice of the defect or might have had notice thereof by the exercise of reasonable care and diligence." Since the passage of the statute of 1877, c. 234, (Pub.St. c. 52, §§ 18-20,) cities and towns are liable for injuries caused by a defect in a way only when the defect might have been remedied by reasonable care and diligence on their part. It is incumbent on a plaintiff, in a case of this kind, to show either actual notice of the defect to the city or town before the accident or such facts and circumstances that the city or town, by the use of care and diligence, might have had notice of it.

In the present case, there was no evidence of actual notice to the defendant of the existence of the defect, nor anything to show how long the cover had been misplaced. The jury might as well have found that the misplacement occurred only five minutes before the accident as at any earlier time. There was nothing but conjecture on which to rest a finding. While the bill of exceptions purports to state all the evidence bearing on the question, nothing appears as to the adjustment of the cover to the man-hole, or as to the cover itself, except the statement that it was about 20 inches across, and a proper and sufficient one. It is not said that there was anything material to the present issue which might have been discovered in taking the view. It does appear that the man-hole was used...