Murphy v. City of Worcester , 159 Mass. 546 ( 1893 )

Knowlton, J.

By St. 1877, c. 234, § 2, (Pub. Sts. c. 52, § 18,) a qualification was introduced into the law creating a liability for an injury or damage to property caused by defects in a highway, by adding to the conditions precedent to the right to recover the requirement that the defect or want of repair in the way should be such as might have been remedied, or the damage or injury such as might have been prevented “ by reasonable care and diligence on the part of the county, town, place, or persons by law obliged to repair the same.” In order to show negligence or fault on the part of the city or town, it is as necessary to establish this proposition as to prove that the way is defective. Usually it is not necessary to prove it by direct evidence, for ordinarily it may be a matter of legitimate inference from the existence of the defect for a certain length of time; but the burden of proof is on the plaintiff to establish it in some way as one of the facts mentioned in the statute on which the right of recovery depends. The ruling on this part of the case was correct.

The presiding justice was not called upon to give the second ruling requested without qualification, and in the form in which it was asked. He thought it proper to direct the attention of the jury to “ the whole situation,” and to point out to them the possibility of the plaintiff’s having chosen her pathway along the sidewalk without reference to the condition of the walk on each side of her line of travel, and to tell them if she selected her pathway voluntarily as a safe place in which to walk, it was immaterial what the condition of the snow and ice on either side was. There was evidence in the case which made it proper to instruct the jury on this point. He then presented to them the alternative of her finding, on passing over the sidewalk, a dangerous accumulation of snow and ice on either side, and of her taking on that account the pathway where she was hurt, which proved to be defective, and told them that, if they found the facts in that way, they might take into account the dangerous accumulation on either side. Although the language of a part of this instruction is not entirely clear, we are of opinion that in view of the form of presenting the alternative propositions, the jury, in their consideration of the snow and ice on either side as bearing upon the plaintiff’s conduct and the defendant’s liability, were not limited to an accident occurring at the point where she stepped into the pathway, but that the instruction was intended to apply equally if the injury occurred after she had begun walking in the path which she had taken in part because of the danger on each side of it. It does not appear that the rights of the plaintiff were prejudiced by the form in which the instruction was given.

Exceptions overruled.