288 Mass. 50

September 18, 1934 - September 24, 1934

Berkshire County

Present: Rugg, C.J., Crosby, Pierce, Field, & Lummus, JJ.

Way, Public: defect.

At the trial of an action of tort against a city for personal injuries alleged to have been sustained by a pedestrian by reason of a defect in a public way paved with brick, the evidence concerning the alleged defect consisted merely of testimony that the defect was "a hole," "a sunken brick," "two small bricks ... sunken in a little," and a photograph and plan upon which the hole seemed insignificant. Held that as a matter of law there was no evidence of a defect in the way of such a nature as to render the defendant liable, and that it was proper to order a verdict for the defendant.

TORT. Writ dated June 30, 1931.

In the Superior Court, the action was tried before Mortor J. Material evidence is described in the opinion. The judge ordered a verdict for the defendant. The plaintiff alleged exceptions.

H. L. Harrington, for the plaintiff.

J. N. Alberti, City Solicitor, for the defendant.

BY THE COURT. This is an action to recover compensation for injuries sustained by a pedestrian who fell in crossing a brick paved street through an alleged defect distant a foot or two from the curbing of the sidewalk. Testimony from the plaintiff was that the alleged defect was "a hole. . . . It was sunk down. A hole that my foot, my heel caught in"; and from other witnesses was that it was a "sunken brick," "two small bricks . . . sunken in a little," "the brick kind of broken up a little bit, kind of sunken in." There was no testimony as to the area, depth,

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or other features of the so called "hole." On photographs and plan it seems insignificant.

As matter of law there was no evidence of a defect in the roadway of a nature to render the defendant liable. Raymond v. Lowell, 6 Cush. 524, 533-534. Newton v. Worcester, 174 Mass. 181. Isaacson v. Boston, 195 Mass. 114. Cannon v. Brookline, 256 Mass. 468. Boudreau v. Springfield, 257 Mass. 105. Cataldo v. Boston, 263 Mass. 330.

Exceptions overruled.