Marvin v. City of New Bedford

1. The jury were warranted in finding that the hole in the sidewalk which caused the injury to the plaintiff was a defect for which the defendant was responsible under the Pub. Sts. c. 52, § 18 ; and the court below properly refused to rule, as matter of law, that no defect had been shown. Street v. Holyoke, 105 Mass. 82. Ghenn v. Provincetown, 105 Mass. 313. Loan v. Boston, 106 Mass. 450. Gerald v. Boston, 108 Mass. 580. George v. Haverhill, 110 Mass. 506. Dowd v. Chicopee, 116 Mass. 93.

2. The question put to Boomer was properly excluded. It is not competent in a case of this kind for the plaintiff to show that *467another accident has previously happened at the place of the alleged defect, for the purpose of showing that the place is defective. Collins v. Dorchester, 6 Cush. 396. Blair v. Pelham, 118 Mass. 420. Nor is it competent for the defendant to show that no accident has previously happened there. Aldrich v. Pelham, 1 Gray, 510. Kidder v. Barnstable, 11 Gray, 342. Schoonmaker v. Wilbraham, 110 Mass. 134. To admit such testimony would raise a collateral issue, which would have no legitimate bearing on the principal fact in dispute. The defendant contends that the evidence was admissible on the question whether the defect might have been remedied by the exercise of reasonable care and diligence on the part of the city. This hole in the flagging existed when the flagging was laid, five or six years before the accident. During this time it was more or less filled in with dirt, which was liable to be swept out when the sidewalk was swept. It could hardly be contended that such a condition of things could not be remedied by the exercise of reasonable care and diligence. However this may be, it is enough to say that the evidence sought to be introduced has no legitimate bearing upon this issue.

3. The questions put to the witness Drake were properly excluded. Whether it was common to find depressions in the sidewalk in other cities, or in New Bedford, large enough to admit the portion of a foot of an ordinary adult, had no tendency to show either that the hole in question was not a defect, or that the defect, if it existed, could not have been remedied “ by reasonable care and diligence ” on the part of the defendant. Such questions, if allowed to be put, would raise collateral issues not pertinent to the issues in the case. Bacon v. Boston, 3 Cush, 174. Bliss v. Wilbraham, 8 Allen, 564. Packard v. New Bedford, 9 Allen, 200. Hinckley v. Barnstable, 109 Mass 126. Schoonmaker v.Wilbraham, 110 Mass. 134. George v. Haverhill, 110 Mass. 506.

The evidence in the case of Raymond v. Lowell, 6 Cush. 524, 531, related merely to proof that in other towns or cities, as well as in Lowell, the edge of the curbstone was not on the same level as the carriageway, “ which,” as the court remarks, “ was in fact a matter very obvious and known to everybody without any testimony.” The remark of the court that the evidence was “ admissible, as bearing upon the question of ordinary care,” has *468generally been considered as relating to care on the part of the plaintiff. See cases last above cited. That such evidence is not admissible on this issue, unless the plaintiff has knowledge of the other defects, is well settled. Hinckley v. Barnstable, 109 Mass. 126. Schoonmaker v. Wilbraham, 110 Mass. 134. In George v. Haverhill, ubi supra, it was held that evidence that witnesses had seen depressions and elevations in sidewalks of the size of the one in question in that case was too indefinite and remote, as affecting the question of care on the defendant’s part. It is true that in that case it was said that evidence of the condition of sidewalks in other cities was inadmissible on the question of cave on the part of the defendant, because that was not the test of the liability. It is also true that, under the Pub. Sts. c. 52, § 18, reasonable care on the part of a town or city is a test of liability. But such evidence has been held inadmissible on the broader grounds above stated. See cases above cited.

Exceptions overruled.