George v. City of Haverhill , 110 Mass. 506 ( 1872 )

Colt, J.

1. The liability of cities and towns for defects in highways is a statute liability. The requirement is that highways should be kept safe and convenient for travellers at all times. If the way, by this standard, is defective, and the defect had existed for the space of twenty-four hours, or there was reasonable notice of it, and injury is thereby caused without the fault of the traveller, the liability of the town is fixed. It is the duty of the town to repair the defect within the time named, or seasonably to warn the traveller so that he may avoid the danger. The question what is safe and convenient within the meaning of the statute, is a question which in most cases it is the appropriate province of th# jury to settle» and considerations relating to the nature and amount of travel, and what it is reasonably practicable to do in constructing and maintaining the way in question, will always have weight with them. Absolute safety beyond the possibility of accident will never be required, for that would be impracticable. But if the jury find that the defect exists within the reasonable application of the rule given, it is enough. The town must respond, whether the defect arose from negligence or from causes which no care on its part could prevent or control. All the instructions asked which were based on the proposition that towns and cities are bound to exercise only ordinary care in the performance of this duty were therefore properly refused, and the instructions given were sufficient and appropriate. Billings v. Worcester, 102 Mass. 329, 333.

The defendants insist that the measure of liability as claimed by them in the instructions asked are in accordance with the law as stated in Raymond v. Lowell, 6 Cush. 524. The defect relied on in that case was the slight elevation of a movable grating, located between the sidewalk and the carriageway, upon which the plaintiff tripped and fell. It was held to be no defect; but in the course of the opinion it is said “ that towns and cities must exercise ordinary care and diligence to make their highways and streets safe and convenient for travellers. This is the duty imposed upon them by law. For want of this they are liable, and this is the extent of their liability.” This statement is made in support of the proposition that the way as it existed was, as matter of law, reasonably safe and convenient. It was not necessary to the point decided, and as an accurate construction of the statute it cannot be maintained in the light of more recent decisions. In Morton v. Ipswich, 12 Cush. 488, it was expressly held to be no defence to an action of this description that the town used ordinary care and diligence in repairing the road, if by such care it was not made safe and convenient but remained defective.^*

2. Evidence of the mode in which sidewalks were constructed in other cities was not admissible upon the question whether the condition of this sidewalk was a defect. The fact that similar defects existed in other places would afford the defendants no excuse for their neglect of duty. It was not admissible to show due care on the part of the defendants, because, as we have seen, that is not the test of liability. The admission of it as confined to its bearing upon the question of due care on the part of the female plaintiff, was sufficiently favorable to the defendants.

3. Evidence that witnesses had seen depressions and elevations in sidewalks of the size of the one in question, was too indefinite and remote, as affecting the due care of the female plaintiff, and was properly excluded. Packard v. New Bedford, 9 Allen, 200. Raymond v. Lowell, 6 Cush. 524. Bliss v. Wilbraham, 8 Allen, 564.

4. The fact that the female plaintiff had previous knowledge of the alleged defect, had previously passed over it and knew of its location is not, under the circumstances disclosed, as matter of law, conclusive evidence of her want of due care. The defect here complained of was not such that the public travel was turned aside, and the plaintiff’s attempt to pass over it did not in itself conclusively show want of care; nor is the fact conclusive that at this particular time she was not thinking of the defect. The accident happened in the evening; the obstruction was not of a character to attract immediate attention, and its location was obscured for the time by the shadow of trees in the vicinity. It is all to be considered by the jury, but it is not required, as matter of law, that the thoughts of the traveller shall be at all times fixed upon those defects in the road he travels, of which he may have knowledge. Thomas v. Western Union Telegraph Co. 100 Mass. 156. Mahoney v. Metropolitan Railway Co. 104 Mass. 73.

5. It was proper, for the purpose of showing the extent of the injury to the female plaintiff, to prove the amount of work she was able to perform before the accident, as indicated by the number of boarders she kept. Ballou v. Farnum, 11 Allen, 73.

6. The question at the trial was whether this sidewalk at the time of the accident was safe and convenient. Its condition at any other time could only be material as having a tendency to show what it then was. The plaintiffs’ evidence was confined to a description of the alleged obstruction at or about that time. The defendants offered evidence of its condition at a time ten months after, and after, as it was admitted, a material change had been made in its position. This evidence was excluded. If the condition of the sidewalk had been permanent in its character, not exposed to change of surface from the wear of public travel and the effects of climate, if there had been no interference with it during the time, evidence of what it was even at a time so long subsequent, might perhaps have been admitted. But that is not the case. A collateral question as to the extent of the admitted change is here raised, and upon the facts stated we are not satisfied that there was any error in the ruling of the court upon this point. Exceptions overruled.

* The same point was decided at this term in the case of

Stephen B. Bodwell vs. Inhabitants op North Andover.

Tort to recove.™ for personal injuries occasioned by a defect in a highway on which the plaintiff was travelling, and which the defendants were bound to keep in repair.

At the trial in the Superior Court, before Brigham, C. J., it appeared that the accident was caused by the sleigh in which the plaintiff was driving on February 6, 1867, striking against a stick of wood frozen into the snow with which the highway was covered.

The plaintiff asked the judge to instruct the jury, “ that i£ they found that by reason of this stick of wood, the highway was not reasonably safe and convenient, and that such defective and unsafe condition had existed for more than twenty-four hours, then the defendants were liable, if the plaintiff proved that he was using due care ; that the obligation on the part of the defendants to keep their ways reasonably safe and convenient was an absolute obligation, and involved no consideration of negligence or diligence; and that if the highway was unsafe and defective, having regard to the nature and extent of the travel over it, and had been so for twenty-four hours, it was no defence that the defect was latent, and that the defendants, having used due and reasonable diligence, had failed to discover and remove it.

But the judge declined so to instruct the jury, and instructed them as follows : “ What was such a defect in the highway as to render the defendants liable for an injury occasioned by it, is a practical question to be determined by the jury, in view of the circumstances of each particular case. Municipal corporations, obliged to maintain roads, are bound to incur all reasonable expense, and to take all reasonable care to make and keep their roads safe and convenient ; but they are not required to do any more ; and in determining whether this duty has been performed, the location of the road, the difficulty of keeping it in a better condition without unreasonable expense, the season of the year, and the kind and amount of travel having occasion to pass over the road are all to be considered in determining whether, in a given case, a town, in the discovery of the cause and repair of defects in a highway, which have existed for more than twenty-four hours, has used all reasonable diligence and care, and incurred all reasonable expense to make it safe and convenient.”

The jury returned a verdict for the defendants, and the plaintiff alleged exceptions.

S. B. Ives, Jr., for the plaintiff.

D. Saunders Sf E. J. Sherman, for the defendants.

Colt, J. In actions for injuries from defects in highways the question for the jury is whether the way was safe and convenient. The statute fixes this standard and no other test is given. It is to be applied with reference to the locality through which the road passes, the inevitable effects of climate, the season of the year, the nature and amount of travel to be accommodated, the expense and difficulty of constructing and maintaining the road, and such other considerations as may bear on the question what in that place constitutes a safe and convenient way. Perfect safety cannot be secured ; but if the jury find that a defect exists by the rule given, the liability is fixed, and cannot be avoided by proof that the town used ordinary care and diligence in repairing the road. The precise point here made was decided at this term in George v. Haverhill, supra. In addition to the cases there cited, the case of FUz v. Boston, 4 Cush. 365, now cited by the defendants, will be found to support the law as above stated, instead of conflicting with it. The instructions of the judge there given, which are relied on by the defendants, were given to aid the iury in determining whether the way in question was reasonably safe and convenient, and do not imply that the exercise of reasonable care would excuse the town, if the defect in fact existed.

The instructions given, which were founded on the proposition that towns are required to exercise only ordinary care in constructing and maintaining their highways, were erroneous. - Exceptions sustained.