98 Mass. 570 | Mass. | 1868
This court has already decided that a municipal corporation is not liable in damages for an injury sustained by the carelessness of a laborer employed by a highway surveyor in repairing a highway. In the case adjudged, the laborer carelessly drove a horse and cart so that they came into collision with the plaintiff. Walcott v. Swampscott, 1 Allen, 101. In the case at bar, the negligence imputed to the driver consisted in walking too far behind his horses and leaving them without due care and guidance while he was engaged in conversation.
The principle established by the authorities is, that the duty of keeping public ways in repair is one imposed upon all towns and cities alike, as a public duty from the performance of which they derive no special advantage in their corporate capacity; and that the agents selected to execute this duty in obedience to the law of the Commonwealth are to be regarded as public officers rather than as the servants or agents of the municipal corporation by which they are employed. The relation of master and servant does not exist, and the maxim respondeat superior does not apply. White v. Phillipston, 10 Met. 108. Bigelow v. Randolph, 14 Gray, 543. Hafford v. New Bedford, 16 Gray,
. Child v. Boston, 4 Allen, 52. In our opinion the superin tendent of streets in the city of Lowell occupies the same position, in this respect, as an ordinary highway surveyor or a party