Abihider v. City of Springfield

277 Mass. 125 | Mass. | 1931

Rugg, C.J.

This is an action of tort to recover compensation for personal injuries alleged to have been received by the plaintiff while a traveller upon a public way. The accident occurred near the corner of two streets where a fire station was located, owned by the defendant. The fire station was set back about twenty feet from the line of one of these streets and about five feet from the line of the other street. There were sidewalks on both streets and the sidewalk construction extended from the street lines to the fire station so that the appearance was of a uniform construction of the sidewalks and of the space lying outside the street lines and between them and the fire station. There was no sign or mark on the face of the earth to indicate where the street line ended and the property line of the lot belonging to the defendant on which its fire station was located began. The plaintiff, having walked along the sidewalk of one of these streets, when she approached the corner of the streets started to cross the paved part of the approach to the fire station in order to reach the sidewalk of the other street. She was injured by an alleged defect while thus crossing that paved part. There can be no dispute on the record that these are the facts.

The plaintiff cannot recover. The accident occurred not on a public way but outside the street lines. Plainly G. L. c. 84, § 15, is not applicable. It is settled by Sullivan v. Boston, 126 Mass. 540, that there can be no recovery on the theory that the approach to the fire station was dedicated to public use and that the open space by the fire station cannot in any just sense be termed a way open and dedicated to public use so that the public should be excluded from it or warned of its danger. Sections 23 and 24 of G. L. c. 84, do not aid the plaintiff. Stone v. Attleborough, 140 Mass. 328. Perry v. Commonwealth, 188 Mass. 457. Jones v. Boston, 201 Mass. 267. Dakin v. Somerville, 262 Mass. 514. Municipalities maintain fire departments solely for the public welfare and are not liable for negligence in the performance of that duty. Bolster v. Lawrence, 225 Mass. 387, 389. Gregoire v. Lowell, 253 Mass. 119, 121.

The motion to amend the declaration was denied rightly. The facts do not warrant a finding for the plaintiff on the allegations there set forth. Bartol v. Boston, 259 Mass. 323, 325.

In accordance with the terms of the report the entry may be

Judgment for defendant.