Winship v. City of Boston

• Decision Date: 26 February 1909
• Citation: 87 N.E. 600,201 Mass. 273
• Parties: WINSHIP v. CITY OF BOSTON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

201 Mass. 273

87 N.E. 600

WINSHIP v. CITY OF BOSTON.

Supreme Judicial Court of Massachusetts, Suffolk.

February 26, 1909

COUNSEL

Gleason & Higgins, for plaintiff.

G. A Flynn, for defendant.

OPINION

BRALEY J.

The original notice, required by Rev. Laws, c. 51, § 20, did not fully state the place and cause of the plaintiff's injury; but the supplemental statement, in reply to the defendant's request for further particulars, either cured the omission, or the jury could find that in giving the notice there was no intention to mislead, and that in fact the defendant was not thereby misled. Canterbury v Boston, 141 Mass. 215, 4 N.E. 808; Norwood v. Somerville, 159 Mass. 105, 33 N.E. 1108; Carberry v. Sharon, 166 Mass. 32, 43 N.E. 912. The previous knowledge of the plaintiff of the condition of the sidewalk which was in process of repair, while evidence for the consideration of the jury on the question of her due care, cannot be said as matter of law to constitute negligence. Torphy v. Fall River, 188 Mass. 310, 74 N.E. 465; Campbell v. Boston, 189 Mass. 7, 75 N.E. 96; Hennessey v. Taylor, 189 Mass. 583, 586, 76 N.E. 224, 3 L. R. A. (N. S.) 345; Thompson v. Bolton, 197 Mass. 311, 313, 83 N.E. 1089; Gallagher v. Watertown, 197 Mass. 467, 83 N.E. 1104.

It is the defendant's further contention that there was no evidence of its negligence, even if it was required to exercise reasonable diligence to maintain the street in a reasonably safe condition for the use of travelers. Hyde v. Boston, 186 Mass. 115, 118, 71 N.E. 118; Mason v Winthrop, 196 Mass. 18, 81 N.E. 644. A part of the sidewalk was being repaired, while the entire street had not been closed to public travel. While the public ways cannot properly be maintained without frequent repairs, which cannot be classed as defects, yet ordinarily when in process they may render the way defective, and unsafe if left open to travelers. Pratt v. Cohasset, 177 Mass. 488, 59 N.E. 79. In undertaking the work without closing the street, it became the defendant's duty, by either erecting, and maintaining a sufficient barrier, or posting notices, or providing some other suitable means, to warn travelers that this part of the sidewalk had been withdrawn from the use of the public. Jones v. Collins, 177 Mass. 444, 59 N.E. 64; Id., 188 Mass. 53, 74 N.E. 295; MacFarlane v. Boston Elevated Railway Co., 194 Mass. 183, 185, 80 N.E. 447. The jury could find, on the evidence, that for a period of at least two days the bricks had been out of place, leaving an open space where the plaintiff fell, and that a rope inclosing the portion under repair had been put up, and kept in position until about an hour before the accident, when it had been removed. If they reached this conclusion, then at the time the plaintiff was injured the defendant was engaged in repairing a public way, which was left open to passing pedestrians without giving any warning, and...