
    Susan A. Foster vs. City of Boston.
    Suffolk.
    November 12, 1878; June 24.
    August 18, 1879.
    Knowledge by a person, appointed by the school committee of a city janitor of a public school-house, of the fact that a coal-hole in the sidewalk in front of the school-house is uncovered, is not notice to the city of a defect in the highway.
    Tort, on the Gen. Sts. e. 44, § 22, for personal injuries sustained by the plaintiff on March 18,1876, by falling into an open coal-hole in the sidewalk in front of a public school-house on a highway in Boston.
    At the trial in this court, before Morton, J., there was no evi dence that the defect had existed for twenty-four hours, but there was some evidence that the cover of the coal-hole was removed by the janitor, or that he knew of such removal, within that time.
    The judge ruled that notice to the janitor would be notice to the city; and that, if the jury found that the janitor removed or knew of the removal of the cover of the coal-hole, they might find that the city had notice of the defect.
    The jury returned a verdict for the plaintiff; and the judge reported the case for the determination of the full court. If the rulings were correct, judgment was to be entered on the verdict; otherwise, judgment was to be entered for the defendant.
    The case was argued at the bar in November 1878; and after-wards submitted on briefs to the whole court.
    
      E. P. Nettleton, for the defendant.
    
      J. H. Wolff, for the plaintiff.
   Endicott, J.

The court is of opinion that notice to the janitor of a school-house in the city of Boston, that a highway is in a defective and unsafe condition, is not notice to the city. It has been repeatedly held, in those cases where a defect in a highway has not existed twenty-four hours, that the city or town cannot be held liable for damages occasioned thereby, unless some proper officer, whose duty it is to attend to municipal affairs, has received reasonable notice of the same; or unless the facts presented lead to the inference that such officer knew, or with proper care might have known, of its existence. Reed v. Northfield, 13 Pick. 94. Donaldson v. Boston, 16 Gray, 508. Harriman v. Boston, 114 Mass. 241. Monies v. Lynn, 119 Mass. 273. See also Nichols v. Boston, 98 Mass. 39. A janitor is not such an officer. By the St. of 1875, e. 241, § 5, the school committee of Boston is authorized to “ appoint janitors for the school-houses, fix their compensation, designate their duties, and may discharge them at pleasure.” The city has no voice in their appointment, and no control over them when appointed; and no municipal duties of any kind devolve upon them. Whatever may be their duties in regard to the care of the school-houses committed to their charge, they have none in regard to the repair or condition of the public ways.

Judgment for the defendant.  