Howe v. City of Marlborough

There was evidence tending to show that the plaintiff, while a traveller upon a public way of the defendant on the evening of a December day, caught his toe against a rise or projection near the middle of a concrete sidewalk, and received an injury. Across the sidewalk was a driveway, but there was no edgestone or gradual slope to separate or protect it. Its appearance was as if a part of the sidewalk had been at one time upon one level, and later the rest built at another level, the rise being two and a quarter and two and a half inches, extending the width of the walk. “ The edge of the rise ” was described as “broken and ragged,” “rough,” “ a little bit jagged,” and also as a “ break ” and as “ broken off a little abruptly.”

' The defendant stoutly contends that the case is governed by Raymond v. Lowell, 6 Cush. 524, Newton v. Worcester, 174 Mass. 181, Burke v. Haverhill, 187 Mass. 65, Rust v. Essex, 182 Mass. 313, and Isaacson v. Boston, 195 Mass. 114, in each of which it was ruled as matter of law that the alleged defect was not such as the statute contemplated as a foundation for liability. See *28also Mason v. Winthrop, 196 Mass. 18, 20. But these are all distinguishable in that the condition complained of as defective was either in the portion of the highway specially constructed for travellers in carriages, or in the dividing line between the carriageway and the sidewalk, or in being slight or gradually sloping depressions in the footway. There is just enough of difference between the present facts and those presented in the cases cited to make it impossible to rule as matter of law that there was no defect. Where there is a difference in elevation between portions of a sidewalk or where there is a driveway across it and the material composing the dividing line is rough and jagged, it is a question of fact whether the condition is defective. It is to be observed that there was no attempt, by edgestone or otherwise, to provide a permanent step or a gradual and reasonably regular ascent, but the concrete, though when constructed perhaps even and continuous at the edge, was left without protection to the natural disintegration, which time and wear might produce in such a material. The case is indistinguishable in ' principle from Gallagher v. Watertown, 197 Mass. 467, and Campbell v. Boston, 189 Mass. 7.

Exceptions overruled.