Fleming v. City of Springfield

Exceptions — Waiver — Defect in Highway — Implied Notice — Reasonable. Diligence. A question not raised in the court below is not open on a bill of exceptions; and if raised and not argued, the excepting party will be deemed to have waived it. A statement by the plaintiff, in an action for personal injuries, to his physician as to his symptoms at the time, if made for the purpose of medical treatment and advice, is admissible in his favor, although the interview was only a day or two before, or possibly during the trial. In an action for personal injuries caused by a defect in a highway which the defendant city was bound to keep in repair, it appeared in evidence that the accident was caused by a washout due to the escape of water from a sewer-pipe laid in the way five years before; that this pipe, from its composition and the nature of the soil, was likely to last from three to ten years only, as the defendant's superintendent of streets was informed at the time; that within four or five months of the accident a depression in the surface of the way about fifty feet distant was filled by the defendant without further examination, and within a fortnight a washout had occurred about twenty feet distant, and the city dug down there and replaced all the pipe which appeared to be defective, and examined the projecting ends of what was left and found them all right, but made no further examination; and that upon taking up the pipe after the accident it was found to be in bad condition and full of holes. Held, that it was a question for the jury whether the defendant did or did not exercise reasonable care and diligence in preventing the defect which caused the accident to the plaintiff ; and that the case was properly submitted to them.

Tort, for personal injuries occasioned by an alleged defect in Liberty Street, a highway which the defendant city was bound to keep in repair. Trial in the Superior Court, before Mason, C. J., who allowed a bill of exceptions, in substance as follows. The plaintiff’s evidence tended to show that on September 13, 1890, as he was driving along Liberty Street after a heavy rain, suddenly the horses attached to his vehicle broke through the surface of the road-bed, and the plaintiff was thrown to the ground, and was injured in his arm and shoulder; that the breaking down of the road-bed was caused by the escape of water through holes in a cement sewer-pipe laid therein washing away the soil and leaving a hole beneath the surface, which after the accident and the caving in of the surface was seven feet long and four feet wide, and extended down to the pipe; and that the sewer was laid in 1885 by the defendant’s superintendent of streets. One Driscoll, a manufacturer of cement pipe, testified for the plaintiff that he witnessed the laying of the pipe by the superintendent of streets; that the cement of which the pipe was made was a very cheap grade of cement, and good for nothing; that it would not stand any test, and was not fit for pipe; that the soil of the street at that point was of a clayey nature, the effect of which was commonly to eat up cement pipe; that the life of cement pipe in soil of that kind was from three or four to nine or ten years; and that he told the superintendent that he was making a mistake, and that he did not think the pipe was right or would stand it. There was also evidence that, four or five months before the accident, at a point in the street about fifty feet distant easterly from the place of the accident, a depression came in the soil over the pipe, and the city filled it up without making any examination beneath the surface; that about two weeks before the accident, at a point about twenty feet easterly from the place of the accident, there was a break in the way which resulted from defective pipe in the s'ewer; that the defendant dug down to the sewer then, took out all the pipe which at that point appeared to be defective, examined the projecting ends of the pipe that was left, and, finding them all right, put in new pipe to replace the defective pieces, and filled up the trench properly; and that after the accident the city dug up the sewer at all these places, including the place of the accident, and the pipe was found to be in bad condition and full of holes. Doctor Rice, a physician, who treated the plaintiff for his injury, was called as a witness by the plaintiff, and, after being asked when he saw the plaintiff last and stating that he “ saw him day before yesterday the last time,” in reply to the further question whether the plaintiff then “made any complaint of present symptoms,” was permitted to answer, against the defendant’s objection: “ I asked him how his arm was, as I had not seen him for some time; ‘ Why,’ said he, ‘ I don’t notice any particular difference, I cannot get it up,’ or something to that effect.” The defendant sought to raise a question by its bill of exceptions as to the sufficiency of a notice seasonably given by the plaintiff to it concerning the cause of his injury, but the bill stated that at the trial the attention of the court was not called to the notice otherwise than by the general request for a ruling made by the defendant at the close of the plaintiff’s evidence. At the close of the plaintiff’s case, the defendant requested the judge to rule that the plaintiff on the evidence could not recover; but the judge declined so to rule, and submitted the case to the jury under full instructions as to the obligations of the defendant, to which no exception was taken. The jury returned a verdict for the plaintiff; and the defendant alleged exceptions.