#### Lillian B. Tilton *vs.*City of Haverhill.

Essex.

November 5, 1909.

November 23, 1909.

Present: Knowlton, C. J., Morton, Loring, Braley, & Sheldon, JJ.

*Way,*Public, Notice of defect. *Evidence,*Presumptions and burden of proof.

The fact that, on February 2 of a certain year, a white oak timber three and a half ' inches square, into which were set iron rods of the grating of a sewer drop in a public highway in a city, was, according to the testimony of a witness, so rotten that the witness “ could pick it to pieces . . . simply rotten,” warranted a finding that it was rotten in the previous autumn, when it was inspected by an employee of the city.

Where at the trial of an action against a city by a person, who in February of a certain year was injured through falling into a sewer drop in a public highway in the city because of a spreading of the rods of the grating, it appears that a white oak timber three and a half inches square, into which were' set iron rods of the grating, was in bad repair at the time of an inspection of the grating by an employee of the city in the course of his duties in the autumn preceding, and that the employee did not discover any defect therein, and it also appears that it would be natural for the woodwork underneath to decay, because that is where the water naturally would set, and the city engineer testifies that he had seen gratings where the top would be in good condition and the woodwork beneath would be rotten, it is proper for the presiding judge to refuse to rule that “ it did not appear from the evidence that the defendant had had reasonable notice of the defect, or might have had reasonable notice thereof by the exercise of proper care and diligence,” although the defective part of the timber was underneath and was not apparent on the surface of the grating, since, if the employee had performed his duties properly, the defect would have been discovered, and therefore by the exercise of proper care and diligence the city would have had notice.

Tort for injuries received by the plaintiff, while walking on Stage Street in Haverhill, by reason of her leg slipping through between iron bars covering a “ sewer drop ” in the highway, the plaintiff contending that the bars spread because of the rotten condition of a white oak frame in which they were set. Writ in the Superior Court dated March 1, 1906.

The case was tried before *Hardy,*J. The material facts are stated in the opinion. At the close of the evidence, the defendant requested the presiding judge to order a verdict for the defendant 66 on the ground that it did not appear from the evidence that the defendant had had reasonable notice of the defect, or might have had reasonable notice thereof by the ex*581ercise of proper care and diligence.” The request was refused, the jury found for the plaintiff; and the defendant alleged exceptions.

*G. M.*G. Nichols, for the defendant.

*H. J.*Cole, for the plaintiff, was not called upon.

Loring, J.

1. The fact that the “white oak” cross-piece " 3i inches square ” into which the iron bars were run was so rotten on the morning after the accident (which was on February 1) that a witness " could pick it to pieces,” or, as the same witness described it, " simple [simply] rotten,” warranted a finding that it was rotten in the previous fall. The case comes within the class of cases collected in *Young*v. *Snell,*200 Mass. 242.

2. Testimony was given by one of the plaintiff’s witnesses to the fact that the part of the frame which was rotten was underneath and there was nothing to contradict that; and we assume that the defendant was entitled to take the plaintiff’s case as one where the defect was not apparent on the surface of the grating. The defendant’s main contention is' that under these circumstances the case comes within *Rochefort*v. *Attleborough,*154 Mass. 140; *Stoddard*v. *Winchester,*154 Mass. 149; *Brummett*v. *Boston,*179 Mass. 26; *Miller*v. *North Adams,*182 Mass. 569. But we are of opinion that it does not come within the principle of those cases. What gave way in *Rochefort*v. *Attleborough*and in *Miller*v. *North Adams*was a culvert under a public way. In *Stoddard*v. *Winchester*a part of the public way in which a trench for a water pipe had been dug six months before gave way, and in *Brummett*v. *Boston*a sidewalk gave way. For limitations on this principle under the circumstances to which it was applied in the last two cases, see *Stoddard*v. *Winchester,*157 Mass. 567, and *Bingham*v. *Boston,*161 Mass. 3.

What gave way in the case at bar was the grating over a 44 sewer drop.” One Gaudette, an employee of the defendant city in its street department (called as a witness by the plaintiff), testified 44 that it was a part of his duty to inspect sewer drops ; that they were inspected and cleaned in the spring and fall; that he had inspected this sewer drop and the grating here in question in the fall before the accident just before the ground froze; that at that time he found this sewer drop and grating in good *582condition, and that it was then all right.” In addition the city engineer of the defendant city testified “ that he had seen grates where the top would be in good condition and the wood work beneath would be rotten, and it would be natural for the wood work to decay underneath, because that was where the water would naturally set, and that the bottom part was the part that ought to be watched.” The fact that the “ white oak ” frame was “simply rotten” on the first day of February warranted a finding that it would have been apparent if the inspection of the grating which the city made in the fall before the accident had been properly made. This warranted a finding that the defect here in question was one of which the defendant city by the exercise of proper care and diligence would have had notice.

*Exceptions*overruled.