Citation Codes

Equivalent Citations

citation codes

Attorney(S)

A.A. Gleason, for the plaintiff. G.A. Flynn, for the defendant.

Judges

BRALEY, J.

See more information ...

Smart Summary

Summary of Opinion: Susie G. Winship v. City of Boston (Supreme Judicial Court of Massachusetts, Feb. 26, 1909)

Factual and Procedural Background

This is an action in tort for personal injuries alleged to have been sustained on November 27, 1905, due to a defect in the sidewalk of Boylston Street, a public highway in Boston. The writ was dated February 24, 1906. The case was tried in the Superior Court before Judge Lawton.

Evidence at trial tended to show that the sidewalk at the place of the alleged defect was approximately seven feet wide and made of brick with a usual curbstone next to the roadway. A portion of the sidewalk adjoining the curbstone had been torn up for a width of about eighteen inches, leaving the bricked portion about five and one-half feet wide. At the time of the accident there was no rope or barrier and nothing to protect the public from falling into or stumbling over the open space; the street had not been closed to public travel.

The plaintiff testified she left Winter Hill, Somerville, took the elevated to Boylston Street station, crossed Tremont Street, and walked down Boylston Street on the left side. She noticed the sidewalk was out of its normal condition, said to her daughter to "look out," smelled tar, and observed repairs being made. After taking not more than two steps past Head Place her foot caught on some bricks, which turned over as she stepped on them, and she fell before her daughter could help.

On cross-examination the plaintiff recounted being taken into a store after the fall and having been told by a girl in the store that the area had been "roped off Saturday and Sunday" and that "they had taken the ropes down only about an hour ago." There is no indication in the opinion that the defendant objected to this testimony.

At the close of the evidence the trial judge ruled that the plaintiff could not recover and ordered a verdict for the defendant. The plaintiff filed exceptions to that ruling.

Legal Issues Presented

Whether the plaintiff's supplemental statement in reply to a request for further particulars cured an original notice that did not fully state the place and cause of injury under R.L. c. 51, § 22, or whether the jury could find there was no intention to mislead and that the defendant was not misled.
Whether the plaintiff's prior knowledge of the sidewalk's being under repair, including an appreciation that walking required unusual care, constituted negligence as a matter of law barring recovery.
Whether, when a municipality undertakes repairs on a public way without closing it, it has a duty to warn travelers (for example, by erecting and maintaining sufficient barriers or posting notices), and whether failure to do so can be evidence of negligence.
Whether the evidence in this case (bricks out of place for at least two days, absence of barrier or notice at the time of the accident, and a rope enclosing the repair that had been removed about an hour before the accident) was sufficient to present to the jury the questions of (a) existence of a defective condition and (b) the defendant's knowledge or constructive knowledge of that defect.

Arguments of the Parties

Plaintiff's Arguments

The supplemental statement in reply to the defendant's request for further particulars either cured the insufficiency of the original notice required by R.L. c. 51, § 22, or the jury could find that there was no intention to mislead and that the defendant was not in fact misled.
There was evidence that the brickwork had been out of place for at least two days, that a rope enclosing the repair had been removed about an hour before the accident, and that no barrier or notice existed at the time of the injury — facts from which negligence and notice could be found by the jury.

Defendant's Contentions

The defendant contended that the evidence was insufficient to establish its negligence, even assuming it was required to exercise reasonable diligence to maintain the street in a reasonably safe condition.
The defendant relied on authorities (including Compton v. Revere) distinguishing ordinary repairs left open to travel from situations of street construction or conditions that a traveler might reasonably expect to be unfit for travel.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Canterbury v. Boston, 141 Mass. 215	Supplemental particulars may cure a defective original notice under statutory notice requirements.	Used to support the proposition that the supplemental statement either cured the original notice or that the jury could find no intent to mislead.
Norwood v. Somerville, 159 Mass. 105	Similar authority on sufficiency of notice and curing defects by supplemental particulars.	Grouped with Canterbury and Carberry as precedent supporting that the notice defect could be cured or was not misleading.
Carberry v. Sharon, 166 Mass. 32	Similar authority on notice sufficiency and supplemental particulars.	Applied with the other notice cases to justify that the notice issue was for the jury.
Torphy v. Fall River, 188 Mass. 310	Prior knowledge of the condition is evidence on the question of plaintiff's due care; such knowledge is not negligence as a matter of law.	Relied on to state that the plaintiff's prior knowledge was for the jury to consider and not conclusive of negligence.
Campbell v. Boston, 189 Mass. 7	Supports the proposition that prior knowledge of dangerous condition does not necessarily constitute negligence as a matter of law.	Included among authorities showing the jury should decide whether plaintiff exercised due care.
Hennessey v. Taylor, 189 Mass. 583	Authority on prior knowledge and contributory negligence questions for the jury.	Used to reinforce that prior knowledge is an issue for jury consideration.
Thompson v. Bolton, 197 Mass. 311	Authority bearing on the question of passenger/traveler knowledge and negligence.	Grouped with other cases indicating prior knowledge is not conclusive as matter of law.
Gallagher v. Watertown, 197 Mass. 467	Related authority on the effect of a traveler's knowledge of a condition affecting due care.	Used as part of the line of cases placing the fact of prior knowledge within the jury's province.
Hyde v. Boston, 186 Mass. 415	Cited in discussing whether, despite a municipal duty, there was evidence of negligence by the municipality.	Referenced by the court in stating the defendant's contention that there was no evidence of negligence even if a duty existed.
Mason v. Winthrop, 196 Mass. 18	Authority cited regarding municipal liability and sufficiency of evidence of negligence.	Also cited to represent the defendant's argument that evidence was insufficient to establish negligence.
Pratt v. Cohasset, 177 Mass. 488	Repairs necessary for maintenance are not necessarily defects, but in process they may render the way defective and unsafe if left open to travelers.	Applied to explain that ordinary repairs can become actionable defects if left open without warning.
Jones v. Collins, 188 Mass. 53	When a municipality undertakes repairs without closing a way, it must warn travelers by barriers, notices, or other suitable means.	Relied upon to articulate the defendant's duty to warn when leaving the way open during repairs.
MacFarlane v. Boston Elevated Railway, 194 Mass. 183	Similar proposition about duty to warn or protect the traveling public during work on public ways.	Used to support the duty-to-warn principle stated by the court.
Compton v. Revere, 179 Mass. 413	Authority relied on by the defendant distinguishing the use of a way in construction from ordinary open repairs.	The court noted the defendant's reliance on Compton but distinguished it as involving a materially different use (street in process of construction that traveler knows is unfit).
Bingham v. Boston, 161 Mass. 3	Authority on municipal knowledge or constructive notice of defective conditions.	Invoked to support the proposition that if the way was defective, the municipality knew or should have known of the defect.
Harrigan v. Worcester, 198 Mass. 354	Authority regarding municipal notice or knowledge of defects in public ways.	Used with other cases to support the court's conclusion that the defendant could be charged with knowledge of a defect it should have discovered.

Court's Reasoning and Analysis

The court addressed several discrete legal points in sequence.

Notice under statutory provision: The court observed that the original notice under R.L. c. 51, § 22 did not fully state the place and cause of the injury, but held that the supplemental statement supplied in response to the defendant's request for further particulars either cured the omission or the jury could find that there was no intention to mislead and that the defendant was not thereby misled. The court cited Canterbury v. Boston and related authority in support.
Plaintiff's prior knowledge: The court recognized that evidence showing the plaintiff knew the sidewalk was under repair was relevant to the issue of the plaintiff's due care, but it held that such knowledge could not be deemed negligence as a matter of law. The court cited a string of precedents to show that prior knowledge is for the jury to weigh, not a conclusive bar to recovery.
Municipal duty when repairing without closing: The court considered the defendant's contention that there was no evidence of its negligence. The court distinguished ordinary necessary repairs from defects and noted that when a municipality undertakes work without closing a public way, that municipality has a duty to warn travelers by erecting and maintaining sufficient barriers, posting notices, or by other suitable means, so as to inform the public that a portion of the way has been withdrawn from public use.
Application of the facts to duty and notice: The court recited evidence that the jury could find: the bricks had been displaced for at least two days; a rope enclosing the repair had been put up and remained in place until about an hour before the accident, when it was removed; and at the time of injury there was no barrier or notice. From those factual inferences the court concluded there was evidence for the jury that (a) a defective condition existed and (b) the defendant knew or, by reasonable diligence, should have known of that defect.
Distinguishing contrary authority: The court acknowledged the defendant's reliance on Compton v. Revere, but explained that Compton involved a materially different situation — the use of a street in the process of construction (which a traveler knows is not graded or fitted for public travel) — and therefore was not controlling under the circumstances of this case.

Holding and Implications

Holding: Exceptions sustained. The court sustained the plaintiff's exceptions to the trial judge's ruling that the plaintiff could not recover and the order of verdict for the defendant.

Implications as stated in the opinion:

The court reaffirmed that a supplemental statement in reply to a request for particulars can cure an originally defective statutory notice, or that the jury may find there was no intention to mislead.
The court held that a traveler's prior knowledge of repairs is a matter for the jury on the question of due care and does not constitute negligence as a matter of law.
The court emphasized the municipal duty: when a city undertakes repairs without closing a public way, it must warn travelers — by barriers, notices, or other suitable means — if a portion of the way has been withdrawn from use; failing to do so can be evidence of negligence if the conditions and surrounding circumstances warrant that conclusion.

Direct effect on the case: the trial judge's directed verdict for the defendant was found to raise issues for the jury, and the plaintiff's exceptions to that ruling were sustained. The opinion applies and discusses existing precedent but does not state that a new, broad precedent was created beyond the principles applied to the facts here.

Show full summary ...

SUSIE G. WINSHIP vs. CITY OF BOSTON.

Way, Defect in highway. Negligence, In use of highway. Knowledge that the sidewalk of a street is undergoing repairs and that walking there requires unusual care does not as matter of law show negligence on the part of a traveller who is injured in walking upon that part of the sidewalk, if no portion of the street is closed to travel and there is no rope or barrier to prevent travellers from passing over the defective portion of the sidewalk.

Where a city undertakes to make repairs upon a highway without closing it, it is its duty to warn travellers, by erecting and maintaining sufficient barriers or posting notices or by other means, that the part of the way undergoing repairs has been withdrawn from the use of the public.

In an action against a city for injuries sustained by reason of an alleged defect in the sidewalk of a highway of the defendant, if there is evidence that the plaintiff fell and was injured on stumbling at a place where bricks had been removed from a portion of the sidewalk in making repairs, that the bricks had been out of place for at least two days, that at the time of the accident there was no barrier or notice to prevent travellers from walking upon this portion of the sidewalk and that a rope enclosing the portion under repair had been put up and kept in position until about an hour before the accident, when it had been removed, there is evidence for the jury of the existence of a defect in the highway and that the defendant knew or by the exercise of reasonable diligence should have known of the defect.

BRALEY, J.

The original notice required by R.L.c. 51, § 22, did not fully state the place and cause of the plaintiff's injury, but the supplemental statement in reply to the defendant's request for further particulars, either cured the omission, or the jury could have found that in giving the notice there was no intention to mislead and that in fact the defendant was not thereby misled. Canterbury v. Boston, 141 Mass. 215. Norwood v. Somerville, 159 Mass. 105. Carberry v. Sharon, 166 Mass. 32.

The previous knowledge of the plaintiff of the condition of the sidewalk which was in process of repair, while evidence for the consideration of the jury on the question of her due care, cannot be said as matter of law to constitute negligence. Torphy v. Fall River, 188 Mass. 310. Campbell v. Boston, 189 Mass. 7. Hennessey v. Taylor, 189 Mass. 583, 586. Thompson v. Bolton, 197 Mass. 311, 313. Gallagher v. Watertown, 197 Mass. 467.

It is the defendant's further contention, that there was no evidence of its negligence, even if it was required to exercise reasonable diligence to maintain the street in a reasonably safe condition for the use of travellers. Hyde v. Boston, 186 Mass. 415, 118. Mason v. Winthrop, 196 Mass. 18. A part of the sidewalk was being repaired, but the entire street had not been closed to public travel. While the public ways cannot properly be maintained without frequent repairs, which cannot be classed as defects, yet ordinarily when in process, they may render the way defective and unsafe if left open to travellers. Pratt v. Cohasset, 177 Mass. 488. In undertaking the work without closing the street, it became the defendant's duty, by either erecting and maintaining a sufficient barrier or posting notices or providing some other suitable means, to warn travellers that this part of the sidewalk had been withdrawn from the use of the public. Jones v. Collins, 188 Mass. 53. MacFarlane v. Boston Elevated Railway, 194 Mass. 183, 185.

The jury could find on the evidence, that for a period of at least two days the bricks had been out of place, leaving an open space where the plaintiff fell, and that a rope enclosing the portion under repair had been put up and kept in position until about an hour before the accident, when it had been removed. If they reached this conclusion, then, at the time the plaintiff was injured, the defendant was engaged in repairing a public way which was left open to passing pedestrians without giving any warning that because of its condition the sidewalk at this point was unsafe and dangerous. The defendant relies on Compton v. Revere, 179 Mass. 413, but there is a material difference in the use of a public way under the circumstances of the case at bar and the use of a street in process of construction, which the traveller knows is not graded nor fitted for public travel.

If the street was found to have been defective, there was evidence that the defendant knew, or in the exercise of reasonable diligence should have known, of the defect. Bingham v. Boston 161 Mass. 3. Campbell v. Boston, 189 Mass. 7. Harrigan v. Worcester, 198 Mass. 354.

Exceptions sustained.

WINSHIP v. BOSTON