Norwood v. City of Somerville , 159 Mass. 105 ( 1893 )

Barker, J.

1. The presiding justice was right in refusing to rule that there was not sufficient evidence to go to the jury, that there was no intention to mislead the city by the notice given, and that the city was not in fact misled, and in submitting those questions to the jury. There was evidence that the plaintiff was hurt on the second day of November, by falling into an open trench dug by workmen employed by the city for the purpose of laying water-pipes, and under the supervision and orders of the city superintendent of waterworks. The notice did not specify the place of injury, except by stating that the plaintiff fell into this trench in Cedar Street, and it appears that the trench was so long as to make this specification indefinite. But there was also evidence that on the day following the accident the superintendent of waterworks was notified of it, and the place where the plaintiff fell pointed out to him, and that he called at the plaintiff’s house and saw her, and was then informed of the accident and of the place where it occurred, and also that some of the workmen on the trench heard of the accident on the following day. The city introduced no evidence that it was in fact misled, or that its street authorities or law officers remained in ignorance of the accident. While notice- to the superintendent and to the workmen may not have been notice to the city, the jury might, under these circumstances, find that there was no .intention to mislead, and that the city was not in fact misled.

2. The question whether the plaintiff was in the exercise of due care was properly submitted to the jury, and the instructions given upon this branch of the case were accurate and were sufficiently full. The jury were properly told that the plaintiff’s knowledge of the defect was not conclusive against her right to recover, and that if she knew the street to be dangerous when she started to go along by the trench, and went on taking her chances and was hurt, she could not recover if she knew and appreciated the danger, and, so knowing and appreciating, voluntarily took the risk of getting hurt. These instructions were at least sufficiently favorable to the defendant. See Pomeroy v. Westfield, 154 Mass. 462, and eases cited.

3. So far as the defendant’s request for rulings were directed to the question of the plaintiff’s care, and were correct in law, they were covered by the instructions given; and the principle that no exception lies because they were not given in the language of the defendant’s prayers, is too familiar to require the citation of authorities. The presiding justice is to state the law in his own way, and is not required to adopt and to repeat to the jury statements either devised or adapted for the purpose of giving emphasis to some particular portion of the evidence or line of argument.

4. ' The instructions given as to the guarding of the trench were correct in law, and adapted to the state of the evidence upon that branch of the case, and the presiding justice, for reasons already stated, was not required to charge the jury that such barriers as were testified to by the defendant’s witnesses would relieve it from liability.

Exceptions overruled.