Way, Public, defect in highway. Negligence, Due care of plaintiff. A hole or gully in an earth sidewalk of a much travelled street of a town, caused by a flow of water across the sidewalk, may be found to have been a defect in a public way, and, if it is shown that this condition of things had existed there for a long time and that the authorities of the town knew of its existence or would have known of it if they had exercised due care, the town may be found to be liable to a traveller injured by reason of this defect while in the exercise of due care.
If a traveller on a public way of a town is injured by reason of a defect therein, consisting of a hole in an earth sidewalk, the fact that he had passed over the hole before on the same day and knew of its existence does not as matter of law preclude him from recovering damages from the town, and, in an action under R.L.c. 51, § 18, for such damages, circumstances may be shown which entitle him to go to the jury on the question whether he was in the exercise of due care.
KNOWLTON, C.J.
There is nothing in this case that calls for the consideration of any but very familiar rules of law, and the facts are simple. The jury properly might find that there was a defect in the earth sidewalk on a much travelled street, which was in the form of a hole or gully, caused by a flow of water across the walk; that this defect had existed there for a long time; and that the authorities of the town knew it, or would have known it if they had exercised due care.
It was a question for the jury whether the plaintiff, at the time of the accident, was using due care. The fact that she had passed over the hole before and knew of its existence does not, as a matter of law, preclude her from recovering. Winship v. Boston, 201 Mass. 273. Campbell v. Boston, 189 Mass. 7. George v. Haverhill, 110 Mass. 506.
Exceptions overruled.