Payne v. City of Lowell

Hoar, J.

The evidence excluded had no bearing upon the question whether there was a defect in the way. If the defect which caused the plaintiff’s injury had existed twenty-four hours then no proof of the attempts made by the defendants to put the way in repair would affect their liability. Gen. Sts. c. 44, § 22. The only point to which it was offered was, to meet the allegation that the city had reasonable notice of a defect which had not existed twenty-four hours, and should have repaired the way. The defendants were permitted to show how much there was for them to do on the particular morning in question ; and it was for the jury to judge whether there was time before the accident to attend to the place where it happened. But if there was not reasonable time to remedy the defect in the street where the accident occurred, consistently with the duty of the city to give due care to other places equally needing it, the city was not liable, whether wagons were on the way to the spot or not. If there was not reasonable time, the fact that wagons were on the way did not diminish the liability. The duty of the defendants *149at that one time and place was all that was in issue. Whether they did their duty elsewhere, or neglected it, was immaterial, The evidence was therefore rightly rejected.

Judgment on the verdict.