Opinion
December 2, 1964.
The case was submitted on briefs.
Douglas R. Winniman for the plaintiff.
James L. Allen, City Solicitor, John J. O'Connor, Associate City Solicitor, for the defendant.
Exceptions overruled. This is an action of tort for personal injuries resulting from a fall on a public way "known as the stairway of the Abbe Avenue Bridge in Springfield." There was evidence of the following. The stairway was made of cement and the "northerly tip of the 14th step was missing . . . [and] the missing tip . . . was irregular, at its maximum about 10" in length and about 2 1/2" in width." Two photographs were introduced in evidence. "Aside from the introduction of the photographs there was no evidence as to the length of time the defect was there." The sole issue before us is whether there was sufficient evidence from which the jury would be warranted in finding that the defendant "knew or in the exercise of proper care and diligence ought to have known of the defect in time to have remedied it." Kelly v. Springfield, 328 Mass. 16. We have examined the photographs and conclude that it would be conjectural to infer from them the length of time the defect had existed. Compare Kelly v. Springfield, supra, 17-18; Hanson v. Worcester, 346 Mass. 51, 52-53. There was no error in the direction of a verdict for the defendant.