Way, Defect in highway, Coal hole in sidewalk. At the trial of an action by a woman against a city under R.L.c. 51, § 18, for injuries sustained, while the plaintiff was a traveller upon a sidewalk of a public way where there was considerable travel, by reason of her falling partly into a coal hole in the sidewalk, there was evidence tending to show that the plaintiff was walking "as any one naturally would" upon the sidewalk on a rainy day in October when the sidewalk was very wet, that the cover of the coal hole was displaced by her stepping upon it and that she fell into the hole. A witness testified that he had slipped into the same hole two years before, that he had inspected the hole and cover then, that then the stone" was worn a little around" and that he thought that the cover did not fit snugly. The occupant of the adjoining building testified that the coal hole had not been changed for sixteen years, that he knew of the accident to the witness two years before that to the plaintiff, but that no change was made in the cover until after the plaintiff's injury. There was no evidence that the cover of the coal hole had been secured by a fastening during the two years preceding the injury to the plaintiff. The presiding judge ordered a verdict for the defendant. Held, that the verdict should not have been ordered for the defendant, since it could not be ruled as matter of law that the defendant might not have had reasonable notice of the defect by the exercise of proper care and diligence.
HAMMOND, J.
This is a close case. Still a majority of the court think the evidence, although meagre, would warrant a finding that the stone into which the iron cover was set was worn so that the cover did not rest firmly upon it and was liable to be displaced when stepped upon in a certain manner; that the cover of the coal hole had been continuously in substantially this condition for two years before the accident to the plaintiff, and was dangerous to public travel, and that it was displaced by the plaintiff stepping upon it at the time of the accident. There was no evidence that during all that time the cover had been secured by any fastening. It fairly might be inferred also that there was considerable travel over the sidewalk where the accident occurred.
Upon such findings and conditions it could not be ruled as matter of law that the defendant might not have had reasonable notice of the defect by the exercise of proper care and diligence. The case is plainly distinguishable from cases like Hanscom v. Boston, 141 Mass. 242, and must be classed with cases like McGaffigan v. Boston, 149 Mass. 289, and Harrigan v. Worcester, 198 Mass. 354.
No citation of authorities is needed to show that the question of due care of the plaintiff was also for the jury. The ruling directing the verdict for the defendant was erroneous. In the opinion of a majority of the court the entry must be
Exceptions sustained.