Bowler v. Mills, 200 Mass. 364

200 Mass. 364 | Mass. | 1909

Knowlton, C. J.

The question principally argued in this case is whether the plaintiff was travelling on Canal Street by invitation of the defendant, or merely as a licensee. The street was laid out and constructed by the defendant, over its own land, for its own purposes,' and it has been very largely used by its employees and others, in connection with the business carried on in its mills. The testimony was uncontradicted that it would be impracticable to exclude the public from the street without interfering with the convenient use of it by the defendant and others in the defendant’s business. Notices have been posted and maintained at different places where other streets open into it, indicating that it is a private way. Upon the authorities, it must be held that the very extensive use of the street by the public has been only permissive, and that members of the public, while on the street, have only the rights of licensees. Moffatt v. Kenny, 174 Mass. 311. Harobine v. Abbott, 177 Mass. 59. Weldon v. Prescott, 187 Mass. 415. Reardon v. Thompson, 149 Mass. 267. Redigan v. Boston & Maine Railroad, 155 Mass. 44. Stevens v. Nichols, 155 Mass. 472. In Sweeny v. Old Colony & Newport Railroad, 10 Allen, 368, there was, in addition'to the construction of the crossing, an invitation by the signal of the flagman. The grounds of distinction between Murphy v. Boston & Albany Railroad, 133 Mass. 121, Hanks v. Boston & Albany Railroad, 147 Mass. 495 and Sweeny v. Old Colony & Newport Railroad, ubi supra, and cases like the present, are pointed out in the three cases first above cited. It is that in these last cases there was an implied representation that the place was a public street which might be used with safety, and an inducement to use it as such, which inducement, like an express invitation, creates a duty to provide for the safety of the users. In the present case the public were informed by the notices along the street that this was a private way.

The measure of the defendant’s duty to the plaintiff was to refrain from doing him an intentional injury and from wantonly or recklessly exposing him to danger. It might use the street and carry on its business and conduct its operations as it chose, so long as it did not transgress in this particular.

It is not contended that the injury to the plaintiff was inflicted intentionally or wantonly, and there is no evidence of a breach of duty on the part of the defendant.

Judgment on the verdict.