Negligence, Of contractor building subway under highway, Res ipsa loquitur. Way. Evidence, Relevance and materiality. Practice, Civil, Variance.
At the trial of an action against a contractor who, under a contract with the Boston transit commissioners by the terms of which he was responsible "for any injury which" might "result from his act or neglect," was constructing a tunnel for the city of Boston under various public streets, to recover for an injury received by the plaintiff in midwinter because a sidewalk upon which he was walking caved in, the caving being alleged to be due to the fact that the defendant negligently performed his work under the sidewalk, there was evidence tending to show that in the construction of the tunnel, which passed beneath the place where the sidewalk caved in, the sidewalk had been taken up by the defendant and an excavation had been made, which was refilled and the sidewalk replaced two or three weeks before the accident, and that in the summer preceding the accident there had been a "slump" of the soil at about the same place. Held, that the doctrine of res ipsa loquitur was applicable, and that there was evidence warranting the jury in finding that the accident was caused by the negligent manner in which the defendant had refilled the excavation and relaid the sidewalk.
At the trial of an action by one, who was injured in midwinter by the caving in of a sidewalk on a public street, against a contractor who in the course of constructing a subway had taken up the sidewalk, had made and refilled an excavation under it and had relaid the sidewalk, the plaintiff contending that the caving in of the sidewalk was due to the negligent way in which the contractor did his work, evidence that in the summer preceding the accident the bank of earth at the excavation "slid" is admissible as tending to show the character of the soil at that point.
A declaration alleged that on a day in winter the plaintiff was a traveller on a certain public street, "that the defendant was engaged in excavating beneath the surface of the street . . . and so carelessly and negligently carried on his work by his servants and agents that he permitted the sidewalk . . . to drop, so that the plaintiff . . . fell into said hole or opening caused by the said negligence of the defendant." The evidence introduced by the plaintiff showed that the work of the defendant under the sidewalk had been completed two or three weeks before the accident. Held, that there was no variance between the pleading and the proof.
MORTON, J.
There was evidence warranting a finding that the plaintiff was in the exercise of due care. She was a traveller upon the highway with nothing in the apparent conditions of the sidewalk to call for anything more than ordinary care on her part, and it could be found and must have been found that she was exercising the degree of care required of her.
There was also evidence which warranted a finding that the accident was caused by the negligent manner in which the defendant had refilled the excavation and in which he had relaid the brick. There was evidence warranting the jury in finding that if the excavation had been properly filled and the brick properly laid the accident would not have happened. The case was especially one for the application of the doctrine of res ipsa loquitur. For a statement of the doctrine, see Thomas v. Boston Elevated Railway, 193 Mass. 438, 440.
Evidence of the "slide" or "cave in" which occurred in the summer was admissible as tending to show the nature of the soil and as bearing in that way upon the degree of care required in refilling the excavation.
We do not construe the declaration as alleging that the defendant was engaged in the work of excavation at the time of the accident, but as meaning that at some time he had been so engaged and had so negligently carried on the work as to permit the sidewalk to drop and that the plaintiff fell into the hole thereby caused. So construed, there was no variance between the pleadings and the proof.
Exceptions overruled.