Hanscom v. City of Boston , 141 Mass. 242 ( 1886 )

Field, J.

The Pub. Sts. c. 52, § 18, provide that, if a person receives bodily injury, or damage to his property, through a defect in a highway, “ which might have been remedied, or which damage or injury might have been prevented by reasonable care and diligence on the part of the county, town,” &c., he may recover damages therefor. This provision was taken from the St. of 1877, c. 234, § 2. By the Gen. Sts. c. 44, § 22, such a person might recover damages, if the county or town “ had reasonable notice of the defect, .... or if the same had existed for the space of twenty-four hours previous to the occurrence of the injury or damage.” Under the General Statutes, upon the question of reasonable notice, the rule of law was, that the facts must be such as to lead to the inference that the proper officers of the town, whose duty it is to attend to municipal affairs, did actually know of the existence of the defect, or with proper diligence and care might have known it. Donaldson v. Boston, 16 Gray, 508. Harriman v. Boston, 114 Mass. 241. Monies v. Lynn, 119 Mass. 273; S. C. 121 Mass. 442, and 124 Mass. 165. Foster v. Boston, 127 Mass. 290.

The decisions upon reasonable notice throw some light upon what is meant in the St. of 1877, c. 234, § 2, by reasonable care and diligence. See St. 1786, c. 81, § 7; Rev. Sts. c. 25, § 22; St. 1850, c. 5; Brady v. Lowell, 3 Cush. 121.

We think that the defect must be one which the proper officers either had knowledge of, or, by the exercise of reasonable care and diligence, might have had knowledge of, in time to have remedied it, or to have prevented the injury complained of. Lyman v. Hampshire, 140 Mass. 311. Purple v. Greenfield, 138 Mass. 1. Rooney v. Randolph, 128 Mass. 580. Harriman v. Boston, ubi supra.

In the present case, there is no evidence that the cover of the coal-hole was out of place before the plaintiff stepped on it, and was injured. There is evidence from which the jury may have found that the cover had not been fastened down on the inside for some time before the accident. If the defendant is liable at all, it must be on the ground that the cover, when in its place, if unfastened on the inside, constituted a defect in the street, which the proper officers of the city ought, by the exercise of reasonable care and diligence, to have known and remedied. It is to be noticed that the Gen. Sts. o. 44, § 1, required that highways be kept in repair “ so that the same may be safé and convenient for travellers; ” but the Pub. Sts. c. 52, § 1, require that they be kept in repair “ so that the same may be reasonably safe and convenient for travellers.” Under the existing statutes, the questions necessarily arise, first, whether there is any evidence which tends to show that the highway was not reasonably safe and convenient for travellers ; and, secondly, if there is such evidence, whether there is any evidence that the town, by reasonable care and diligence, might have remedied the defect, or prevented the damage or injury. The exceptions in the present case relate solely to the second question. The testimony was in effect that this was a firm and close fitting cover to the coal-hole, tightly set in the sidewalk, presenting no obstruction to travel, and even and regular with the surface of the walk. There was no testimony that it could be'displaced by the ordinary use of the walk. It does not appear that the ordinances of the city regulating coal-holes were put in evidence; see Rev. Ord. 1883, c. 26, §§ 24, 25 ; or that the covering was not constructed in accordance with the ordinance. The cover had a ring on the under side intended to be used in fastening it down. There was no evidence that the coal-hole and cover were improperly constructed, or that there was anything in the appearance of the coal-hole or cover that indicated any defect, or that it had ever before been out of place, and no evidence that the officers of the city had any knowledge that the cover was not fastened down on the inside. If the evidence tended to show any defect at all which it was the duty of the city to remedy, it was that the the cover was not fastened on the inside.

It has never yet been held to be the duty of the officers of the city to examine from time to time covers of coal-holes, which are properly constructed and apparently secure, to see if the occupants of the cellars under the coal-holes keep the covers fastened on the inside. In all the decided cases under former statutes, if the defect had not existed for twenty-four hours, and the town officers had no actual notice or knowledge of it, or did not create it, it was left to the jury to find whether these officers, by proper diligence and care, might have known it, only when there was evidence that the defect was open and visible, so that it might be said to be in a sense notorious. Lobdell v. New Bedford, 1 Mass. 153. Reed v. Northfield, 13 Pick. 94. Doherty v. Waltham, 4 Gray, 596. Winn v. Lowell, 1 Allen, 177. Harriman v. Boston, ubi supra. Hodgkins v. Rockport, 116 Mass. 573. Crosby v. Boston, 118 Mass. 71. Burt v. Boston, 122 Mass. 223. Whitehead v. Lowell, 124 Mass. 281.

We think, if the coal-hole was properly constructed, and the cover was properly fitted and was not apparently insecure, and the only defect, if any, was that it was left unfastened on the inside by the occupant of the cellar, and this was not known to the officers of the city, or apparent from the street, that the jury could not properly find, under existing statutes, that the city could have remedied the defect or prevented the injury by reasonable care and diligence.

In Burt v. Boston, 122 Mass. 226, it is said that “ there is no provision of the statute, which limits the liability of towns and cities to open and visible defects, as contended by the defendant, but it extends to all defects.” It was not decided in that case that the appearance of the flagstone (the alleged defect) was such that the jury might find that the city had reasonable notice of the defect, but only that the jury might find that the sidewalk had been in a dangerous condition for twenty-four hours previously to the accident.

We are unable to see any evidence in the case at bar, which ought to have been submitted to the jury, tending to show that the city could have remedied the defect, if any existed, or have prevented the injury by reasonable care and diligence.

Exceptions sustained.