Fortin v. Inhabitants of Easthampton , 145 Mass. 196 ( 1887 )

W. Allen, J.

The case assumes that a defect in the sidewalk caused injury to the plaintiff. The only questions raised are, whether there was any evidence that the defendant had notice of the defect; and whether there was any evidence that the defect might have been remedied, or the injury prevented, by reasonable care and diligence on the part of the defendant, so as to render the defendant liable under the Pub. Sts. a. 52, § 18.

The defect was the existence and condition of ice on the sidewalk. There was evidence from which the jury might have found that the ice was in substantially the same condition at the time of the injury that it was in when formed immediately after a particular storm of snow and rain which occurred at some time before the injury. The plaintiff and several witnesses called by him testified that the storm was on the Sunday before he was injured, which was on a Wednesday. But there was other evidence from recorded observations, which might have satisfied the jury that, as was argued to them by the plaintiff’s counsel, these witnesses were mistaken, and that the storm occurred nearly a week before the time testified to by them.

The defendant contends that there was no evidence that the injury to the plaintiff was caused by the general rough and uneven condition of the ice, or by any defect except the particular one described by the plaintiff as a hole in the ice, and that there was no evidence that that particular defect had existed for any considerable length of time. But we think that the jury would have been authorized to find that the attempt to clear the sidewalk, which left it in the condition testified to by the plaintiff, was made before the ice was fully formed, and more than a week before the injury to the plaintiff.

The jury may have found that the defect which caused the injury had existed for nine days in a frequented sidewalk, which during that time was patrolled by a policeman and several times passed by a selectman. Clearly these facts afford evidence of notice of the defect and of negligence in not remedying it.

Exceptions overruled.