Way, Defect in highway. A circular hole in the surface of a sidewalk from two to two and five eighths inches in diameter caused by the absence of one of the glass disks of a Hyatt light set in the sidewalk can be found to be a defect in the highway. Whether a hole so small that it could endanger no travellers except those using crutches could be found to be a defect in a highway, quære.
BARKER, J.
The plaintiff while walking with crutches on the sidewalk of Union Park Street in Boston was thrown down and hurt because the end of one of her crutches went down into a circular opening in the surface of the sidewalk caused by the absence of a glass disk in a Hyatt light. The hole was from two to two and five eighths inches in diameter. The crutch went down into the hole about two feet. Several of these glass disks were out at the time of the accident. The judge left to the jury the question whether the hole was a defect. The defendant excepted to a refusal to rule that the evidence did not disclose any defect. The only question raised by the defendant in this court is whether we shall decide as matter of law that such a circular opening in the surface of a sidewalk is not a defect.
We have no doubt of our power to hold that a certain condition of things in a way is not as matter of law a defect. See Burke v. Haverhill, ante, 65. Nor do we express any opinion upon the question whether a hole so small that it could endanger no travellers except those using crutches might be a defect. We think it plain that the toe or the heel of many travellers without crutches might be caught in a circular opening two and five eighths inches in diameter, and cause injury.
Exceptions overruled.