Butterfield v. City of Boston

| Mass. | Feb 28, 1889

Morton, C. J.

This case was tried upon the second count in the declaration, and the only question before us is whether the defendant is liable by reason of a defect in a highway. The facts are not in dispute. Warren Bridge is a part of a highway which the city of Boston is bound to keep in repair. St. 1874, c. 259. The plaintiff was intending to drive across the bridge; when he reached it, the gateman was in the act of closing the gate across the way at that place; seeing the plaintiff, he opened the gate and beckoned him on; the plaintiff drove on, and when his horse had put his fore feet upon the draw it was moved by the draw-tender, and the plaintiff and his horse and vehicle were thrown into the river. The gates provided by the city were suitable, and the gateman and draw-tender were competent persons. To render the city liable, the plaintiff must prove that he received an injury through a defect, or want of repair or of sufficient railing, in the highway or bridge, which might have been remedied, or which injury might have been prevented by reasonable care and diligence on the part of the city, and that the city had notice of the defect, or might have had notice by the exercise of proper care and diligence on its part. Pub. Sts. c. 52, § 18. We are of opinion that the facts of this case do not bring it within the letter or the spirit of this statute. The injury to the plaintiff was caused by the momentary negligence of the gateman or the draw-tender, for "which they may be liable, but for which the city is not liable. Nowell v. Wright, 3 Allen, 166. McDougall v. Salem, 110 Mass. 21" court="Mass." date_filed="1872-03-15" href="https://app.midpage.ai/document/mcdougall-v-city-of-salem-6416883?utm_source=webapp" opinion_id="6416883">110 Mass. 21. French v. Boston, 129 Mass. 592" court="Mass." date_filed="1880-11-08" href="https://app.midpage.ai/document/french-v-city-of-boston-6420095?utm_source=webapp" opinion_id="6420095">129 Mass. 592.

It seems to us a misuse of terms to say that the injury happened through a defect in the street, of which the city had notice, and which it might have remedied by reasonable diligence. The draw-tender is required by law to open the draw for the passage of vessels. The law contemplates that it shall frequently be' opened. The opened draw, though it made the street dangerous, was not a defect under the statute. Nor can the city be held liable because at the moment when the plaintiff went upon the bridge the gateman opened the gate and the draw-tender moved the draw. If this was negligence on the part of either, he may be liable. Nowell v. Wright 3 Allen, 166. But the city had supplied a sufficient draw and suitable gates, and had employed competent persons to manage them. The injury to the plaintiff was caused, not by any failure of the city to perform its duty, but, as we have before said, by a momentary negligence of the gateman or of the draw-tender. For this negligence the city is not responsible, and it cannot be indirectly held liable, upon the theory that this negligence created a defect in the street which the city by reasonable diligence might have remedied. We are therefore of opinion, that the instructions of the learned justice who presided at the trial were erroneous.

Exceptions sustained.