Way, Public: defect.
At the trial of an action against a town under R. L. c. 51, § 18, for personal injuries alleged to have been caused by a defect in a sidewalk, there was evidence tending to show that the plaintiff lived near the place of the accident, had passed over the place daily for some months and knew of the alleged defective condition; that as the plaintiff was walking on the sidewalk in the forenoon of a day in July, he "stepped on a stone and turned his ankle, which caused him to lose his balance; that in trying to gather himself, his other foot hit another stone embedded in the ground and which projected two or three inches, causing him to fall sideways to the right over" a wall, on which there was no protecting railing, a direct drop of from three to three and a half feet, upon a rock in an adjoining field. There was evidence that the sidewalk was on the outskirts of the town and that "in places good sized stones protruded where the surface of the walk had worn away." The jury took a view of the premises. Held, that the questions, whether the plaintiff was exercising due care, whether the way was defective, and whether reasonable supervision by the proper town officers would have disclosed and reasonable diligence have remedied the unsafe condition, were for the jury.
De COURCY, J.
Green Street is a public way in Stoneham, which the town is legally bound to keep in repair. At the place of the accident, the adjoining land is three feet, or more, below the level of the sidewalk; and there is no railing or barrier on the retaining wall. The plaintiff testified that, while walking to his home in the forenoon of July 13, 1917, he "stepped on a stone and turned his ankle, which caused him to lose his balance; that in trying to gather himself, his other foot hit another stone embedded in the ground and which projected two or three inches, causing him to fall sideways to the right over a bank wall on to a rock in the field, a direct drop of from three to three and one half feet, thereby injuring his foot. . . ." It is conceded that due statutory notice of the time, place and cause of the injury was served upon the town.
Apart from the provisions of the "due care" statute, St. 1914, c. 553, the evidence entitled the plaintiff to go to the jury on that issue. The fact that he lived near the place of the accident and knew of the alleged defective condition of the sidewalk, is not conclusive evidence that he was careless in attempting to pass over it. And the defendant's thirteenth and fourteenth requests were adequately covered in substance in the judge's charge to the jury. George v. Haverhill, 110 Mass. 506, 513. Page v. Weymouth, 207 Mass. 325. Ginns v. C. T. Sherer Co. 219 Mass. 18.
There was evidence on behalf of the defendant tending to show that this sidewalk, which is on the outskirts of the town, was reasonably safe for travel. On the other hand there was testimony "that in places good sized stones protruded where the surface of the walk had worn away," and that the stone over which the plaintiff's left foot stumbled "stuck up two or three inches." Further, the plaintiff's injury might have been avoided if a suitable railing had been erected, as it would have prevented him from falling over the wall into the rocky field below. The jury took a view of the premises. On the whole evidence we think it was for them to determine whether the way was defective at the place of the accident; and whether reasonable supervision by the proper officers of the town would have disclosed, and reasonable diligence on their part would have remedied, the unsafe condition. St. 1917, c. 344, Part IV, § 24. Redford v. Woburn, 176 Mass. 520. Thomas v. Winthrop, 222 Mass. 456. Lyman v. Amherst, 107 Mass. 339. McMahon v. Harvard, 213 Mass. 20.
Exceptions overruled.