This was an action of tort for injuries received by reason of a defect in a public highway within the municipal limits of the city of Woburn, and which it was required to keep in suitable repair for the use of travellers. A verdict having been returned for the plaintiff, the case is here on exceptions by the defendant.
We treat all the exceptions not argued as waived; and it is now contended that the notice given, and the declaration itself, are not sufficient in law to sustain the verdict.
While the notice given to the defendant may be open to a refined criticism that in part it refers to the carelessness of certain persons employed by the city and who neglected to properly guard the excavation in the street into which the plaintiff fell as a possible separate ground of liability, yet, taken together, the fair construction is that the plaintiff was injured by reason of a defect in a way negligently caused by an excavation “ which the said city and its employees had made at the corner of Eaton Avenue and Main Street, in that part of Woburn known as Central Square.”
It is not suggested that the defendant was misled by the notice, as it was fully informed of the cause of action, and the case was tried solely upon the issue of such a defect, and submitted to the jury under appropriate instructions.
When this question was raised at the trial, at the close of all the evidence the plaintiff was given leave to amend his declaration at any time before final judgment, in order to support the action for the cause for which it was intended to be brought. And after verdict and before judgment, under the exception of the defendant an amendment was accordingly made and allowed.
The evidence shows that the cause of action relied on was the *95defect in the way caused by the negligence of the defendant, and the defendant now makes no claim that the alleged defect in pleading was not cured by the amendment.
As there was no surprise at the trial, and the merits of the case were fully tried upon the understanding that the city was to be held liable only if the way proved to be defective by reason of its negligence, the allowance of the amendment, for the purposes of justice, may be treated in legal effect as if made before verdict and at the time when permission to amend was given.
If originally the exception, that there was a variance between the allegations and the evidence offered to sustain them, was well taken, it became worthless after the amendment was allowed. It no longer stated a legal defence, but raised only an academic question. R. L. c. 173, § 48. Keller v. Webb, 126 Mass. 393, 394. Whitney v. Houghton, 127 Mass. 527, 529. Denham v. Bryant, 139 Mass. 110, 112. United States National Bank v. Venner, 172 Mass. 449, 451. King v. Howes, 181 Mass. 445, 446.
But the original declaration set out a good cause of action against the defendant for a defect in the way caused by its negligence.
It was not necessary to aver that the city was obliged to keep the street in repair, as this is a statutory obligation of which the court is bound to take judicial notice. Pub. Sts. c. 52, §§ 1, 18. Read v. Chelmsford, 16 Pick. 128,130.
If the phrase “ the defendant or its employees ” was deemed ambiguous as stating a possible alternative liability, such a defect is to be pointed out by demurrer. It is not legally available at a trial on the merits for the purpose of defence by a defendant whose answer is a general denial.
Exceptions overruled.