Fontaine v. Follett

BLODGETT, P. J.

Actions against City of Woonsocket by a minor and his father to recover damages alleged to have been caused by a valve box constructed and maintained by the city upon one of its highways, — said valve box being allowed to protrude above the highway, by reason of which said minor while rightfully and with due care using a vehicle on said highway came in contact with said alleged obstruction and was thrown to the ground and injured.

The first count is the ordinary count alleging neglect of the municipality to keep its highways in repair and safe and convenient for travelers with their teams, carts and carriages.

(■Sec. 667, Gen. Laws 1923.)

The term used in this count is that the “vehicle” upon which said minor was riding struck said protruding valve cover.

The second count alleges that the city caused to be installed on Gaulin avenue, a highway of said city, “valve boxes and valve covers” in conjunction with the furnishing of water; that said valve box was so negligently constructed as to protrude above the surface of the highway and become an obstruction; that said minor, while in the exercise of due care, while riding along said highway ran into said obstruction and was injured.

For plaintiffs: John R. Higgins. For defendant: Ovila Lambert.

The first five grounds of the demurrer are untenable.

The sixth ground is that declaration does not state the nature of the vehicle upon which said minor was riding.

It will be noted that the second count is not founded upon any duty of the city to keep its highways in repair, but upon a negligent act of the city in the construction of a valve box in such a negligent manner that the same protruded above the surface of the highway and became a source of danger to any traveler on such highway in the use of due care.

Demurrer overruled.