Bourget v. City of Cambridge

156 Mass. 391 | Mass. | 1892

Holmes, J.

The question, as presented by the plaintiff’s evidence and the ruling of the court, is whether, if one who is travelling in the highway sees a loose telephone wire hanging so as to endanger travellers, and stoops to pick it up and throw it out of the way, he does by that act lose the protection given to travellers by the statute, so that he cannot recover for a defect in the highway under the Pub. Sts. c. 52, § 18. It must be assumed that the jury might have found that the plaintiff was using due care, unless the contrary appears as matter of law, and that the wire charged with electricity was a defect. The fact that the wire belonged to the plaintiff’s master is immaterial. Burt v. Boston, 122 Mass. 223, 227. Hill v. Winsor, 118 Mass. 251, 255.

Our decisions have drawn the line of liability rather favorably for towns, and the case at bar comes pretty near the line; but we are of opinion that the plaintiff ought to have been allowed to go to the jury. It is plain that the mere fact that he stopped momentarily — if he did, which is not clear — would not deprive him of his rights as a traveller. Bliss v. South Hadley, 145 Mass. 91, 94. Varney v. Manchester, 58 N. H. 430. Duffy v. Dubuque, 63 Iowa, 171. If he was a traveller, the mode of his coming into contact with the defect is not material, if it was not negligent.' The fact that he voluntarily took hold of the wire no more prevents his recovery than his voluntarily brushing against it, or voluntarily walking over a pitfall. ' It may be said, no doubt, that such voluntary handling of the wire, even if not negligent, is not incident to the use of the highway for purposes of travel; and that therefore, if harm comes of it, it should not be imputed to the travel, nor give rise to liability, although the cause of the harm was a defect for which the city would have been liable if it had interfered with travel, and had done the damage in that way. We agree that cases of benevolent intermeddling by a volunteer can be put, in which he would take the risk of any harm that might befall him. For instance, if a man should come with carts and bricks and mortar to make serious changes and repairs. But it seems to us that to throw on one side, out of the way of travel, either with one’s stick or one’s hands, a light movable object, which is an annoyance or a nuisance where it is, is one of those every-day acts of kindly feeling which fairly may be said to be an incident of travel, as it commonly goes on, and to be within the protection of the law. Babson v. Rockport, 101 Mass. 93, 94. Britton v. Cummington, 107 Mass. 347. Gulline v. Lowell, 144 Mass. 491. Graham v. Boston, ante, 75.

JExceptions sustained.