
    MARIE F. RUSSO vs. CITY INSTITUTION FOR SAVINGS
    Suffolk, ss. Municipal Court of the City of Boston
    Argued December 1, 1941
    Opinion filed January 23, 1942.
    Present: Carr, Bilby & Tomasello-, JJ.
    
    
      S. Cohen, for the Plaintiff.
    
      Sawyer, Hardy, Stone & Morrison, for the Defendant.
   Tomasello, J.,

In an action of tort the plaintiff sought to recover for injuries sustained October 19, 1940, while walking on a public highway in front of premises on Washington Street, near the corner of Laconia Street, in the City of Boston, when she slipped and fell into a hole at the junction of the sidewalk and the premises in the control of the defendant.

The declaration contained three counts, the first two based on negligence of the defendant in suffering its premises to be out of repair, unsafe and defective; the third count based on the alleged maintenance of a nuisance in permitting the unsafe condition of its premises to exist. The answer was a general denial and a plea of contributory negligence.

The evidence offered by the plaintiff disclosed that on or about August 7,1939, the defendant, who was the owner and in control of the premises, demolished a building which had previously existed on said premises. Subsequently on October 19, 1940, at about 8:30 P. M. on a dark and misty night, while walking on the granolithic portion of the sidewalk in front of the defendant’s premises on Washington Street, the plaintiff’s right foot slipped from the edge of the granolithic pavement into a hole which she did not observe at the edge of said pavement, carrying the rest of her body into the hole, as far as her knees, together with bricks and dirt which she felt sliding beneath her. The hole in question was approximately 3 or 4 feet in depth and 3 feet lengthwise along the granolithic pavement and the curved side of the hole, away from the line of the edge of the granolithic pavement, formed an arc which was about 19 inches wide at its widest point. The hole slanted towards the pavement in the middle of which was a coal-hole with a cover. Under the cover there was an empty space which ran toward the hole off the pavement. The land adjoining the pavement had been filled in and by looking into the hole where the plaintiff fell, a hollow space could be seen underneath the sidewalk. The hole was present from the time the building was torn down to the date of the accident, in varying depths, and was still present following intermittent rainfalls.

The report of the trial judge disclosed that there were no defects in the granolithic pavement or the coal-hole covers located therein.

The defendant offered no evidence at the trial and the plaintiff duly submitted requests for rulings among which were the following:

“1. ‘ An excavation, hole or pit adjoining a public highway or so near thereto that a person lawfully and with ordinary care using* the way might, by accident, fall into it, is a nuisance per se, unless proper means are adopted to guard against the occurrence of such accidents.
“2. The maintenance of an excavation, hole or pit beside the sidewalk whereby a traveler thereon may, by a misstep, fall into the excavation, hole or pit is a public nuisance.
“6. The landlord is liable to third persons for injury caused by a coal-hole or coal-chute, either in its sidewalk or in the premises contiguous to the sidewalk into which a traveler upon the street falls.
“7. The owner of real estate abutting upon the street is liable to strangers who suffer injury from the dangerous construction or condition of a coal-hole or coal-chute in the sidewalk appurtenant to the premises.
“8. If the hole or pit or excavation into which the plaintiff fell was formerly used as a coal-hole or coal-chute, whether it was in the sidewalk or in the premises contiguous to the sidewalk, the plaintiff is entitled to recover, provided the plaintiff was in the exercise of due care.
“10. The evidence does not warrant a finding that the plaintiff was guilty of contributory negligence”.

The trial judge denied requests numbered 1, 2, 6 and 8 and on requests numbered 7 and 10, ruled them inapplicable without special findings of facts being made, and found for the defendant.

Buie 29 of this Court sets forth in part:

“Whenever any request for rulings, founded upon evidence, shall be refused upon the ground that it is inconsistent with or inapplicable to the facts found, or because the facts recited in the request are not found, the Court shall state the facts found, or the facts recited which it does not find, upon which such refusal is based, unless the same appears from special findings filed.”

Failure to comply with this rule ordinarily constitutes reversible error since the purpose of the rule is to apprise the litigant of the reasons for the rulings made. Bresnick v. Heath, 292 Mass. 293, Barclay Park Corp. v. Hugh Bancroft, No. 77025 of the Municipal Court of the City of Boston (56 App. Div. 32).

As to request numbered 10 the plaintiff was well aware from the general finding for the defendant that its denial as inapplicable was the result of the trial judge having determined the defendant’s negligence, thereby rendering the question of contributory negligence mute.

Bequest numbered 7 was properly denied as inapplicable since under the rule the request for rulings must be founded upon evidence. The allegations of the plaintiff’s declaration relied upon the existence of a defect or hole adjoining the sidewalk as the cause of the injuries and there was no evidence upon which the trial judge was required to determine the existence of a dangerous construction or condition of a coal-hole or coal-chute in the sidewalk appurtenant to the premises.

The remaining requests for rulings are founded upon the responsibility of a landowner for a defect or hole in premises adjoining the traveled highway.

To permit recovery the plaintiff was required to show that the defendant committed a breach of some legal duty owed by it to her, since negligence consists in doing or omitting to do an act in violation of a legal duty or obligation. Sweeney v. Old Colony & Newport R. R. Co., 10 Allen, 368, 372, Minor v. Sharon, 112 Mass. 477, 487, Bernabeo v. Kaulback, 226 Mass. 128, 131, Goodwin v. E. B. Nelson Grocery Store, 239 Mass. 232, 234.

The general rule in this country and England seems to be well settled that an abutting property owner who makes an excavation or obstruction on his premises so near an existing highway as to render travel thereon unsafe is liable for consequent injuries to one traveling on the highway who is himself in the exercise of due care. 14 A. L. B. Annotated, pages 1397 to 1398.

In Massachusetts, however, a different rule has been adopted, thus in the case of McIntire v. Roberts, 149 Mass. 450, a traveler on a highway was accidentally pushed into an elevator opening adjoining the sidewalk, the owner was held not liable, on the ground that the obligation is upon the city to put up guards against pitfalls which are so near to a highway as to make it unsafe for travelers, and that there is no duty resting upon abutting owners.

The Court in that case said, “If this elevator opening rendered the sidewalk permanently dangerous to travelers, it was undoubtedly the duty of the City of........to put up a barrier, and if the defendants removed it, they might be liable to travelers who were injured in consequence of its removal, but it has not yet been decided in this Commonwealth that at common law abutters are liable to travelers for injuries received in consequence of excavations made on their land outside the limits of the highway”.

Abutters on a public way have not control of the way as distinguishable from a private way, nor do travelers use a public way by invitation of the abutters.

In the case of Howland v. Vincent, 10 Met. 371, 374, though the excavation was 6 to 18 inches from the edge of the highway, the Court said, “We know of no rule of the common law requiring him (the defendant) to fence the premises ....”.

It has also been held that an excavation outside the limits of the highway does hot constitute a nuisance for which the landowner is liable. Richardson v. Whittier, 265 Mass. 478, 479.

The responsibility of maintaining the sidewalk in a safe condition for travelers rests upon the municipalities. Abutters have no duty imposed upon them to repair defects in the sidewalk adjoining the land owned by them. Tiffany v. Vorenberg, 238 Mass. 183.

Accordingly, in Massachusetts, an owner of land abutting on a public way may excavate to the edge thereof and is not liable even though the plaintiff has as a result of her stumbling, slipping or being pushed eventually landed into this excavation.

Order is — Report Dismissed.  