Andrew Dutton Co. v. City of Boston

By the Court.

The plaintiff at the argument in this court rightly having waived its second count, the action is to recover damages alleged to have resulted from a defective condition of a highway in the defendant city.

The facts in their aspect most favorable to the plaintiff are: One of a pair of horses belonging to it driven on to the Congress Street bridge, after going one step over a plank newly laid in the floor of the bridge, was found to have a spike in its hoof. The horse did not put its foot on the roadway after “picking up” the spike until it was removed'. The spike apparently had not been driven into the plank because it bore no hammer or sledge marks. It was similar to spikes used in securing planks to the bridge surface.

There' is nothing in these circumstances to warrant a finding that the defendant was negligent or was responsible for a defective highway. How or by whom the spike came upon the highway or how-long it had been there are matters left wholly to conjecture. Craig v. Leominster, 200 Mass. 101 . Bigwood v. Boston & Northern Street Railway, 209 Mass. 345 . Smith v. Hyde Park, 219 Mass. 168 . Hamilton v. Cambridge, 219 Mass. 418 .

Judgment for the defendant on the verdict.