197 Mass. 76 | Mass. | 1908
The plaintiff was thrown from his wagon
and injured while driving on a public street. There was evidence that he was in the exercise of due care. The first question in dispute is whether the condition of the street was such as to create a liability on the part of the city or the street railway company for an accident happening there. The street railway was constructed at this point with two tracks, laid with girder rails having a flange on the inside of the rail. Between the rails of the southerly track a grating was constructed,, to carry off water into a catch basin. The flange was cut off from the rails for a distance of two feet,, to let the grating into the rail, and in part to drain the rail. As the plaintiff was driving in a southwesterly direction diagonally across the southerly track, the left forward wheel of his wagon passed along near the line of junction between the grating and the southerly rail, and, as the tire projected a little beyond the sides of the felloe of the wheel, it became caught under the corner of the flange at the westerly end of the portion from which the flange had been cut off. The wheel was held there and the plaintiff was thrown out. It is difficult to understand, upon the evidence, how the wheel could have become caught.
Inasmuch ,as cities and towns are liable for accidents upon highways only when negligent in regard to the condition of the way, the mere fact that an accident happened, from a condition
It is contended by the defendant that it is not legally responsible for the condition of the street in this particular, and that the street railway company alone should be held accountable for the consequences. The statute which gives a right to recover for accidents of this kind limits it to cases in which the dangerous condition might have been “ remedied by reasonable care and diligence on the part of the county, city, town or person, by law obliged to repair the same.” R. L. c. 51, § 18. “Highways, town ways, causeways and bridges shall, unless otherwise provided, be kept in repair at the expense of the city or town in which they are situated,” etc. R. L. c. 51, § 1. When railroad corporations construct their tracks across highways and are required by [aw to keep that part of the way in repair, this provision leaves the city or town with no duty to keep that part of the way in repair, and of course the city or town is not liable for an accident that happens at such a place. Scanlan v. Boston, 140 Mass. 84. Rouse v. Somerville, 130 Mass. 361. Wilson v. Boston, 117 Mass. 509. White v. Quincy, 97 Mass. 430. But it has been held that the requirement of St. 1871, c. 381, § 21 (Pub. Sts. c. 113, § 32), that street railway companies shall keep in repair the paving, upper planking, or other surface material of the portions of the streets occupied by their tracks, does not relieve the city or town from its general duty to keep the street in repair. Hawks v. Northampton, 116 Mass. 420. Fowler v. Gardner, 169 Mass. 505. The following section gives a city or town, against which a recovery has been had for a de
Exceptions overruled.