Chase v. City of Lowell

151 Mass. 422 | Mass. | 1890

Knowlton, J.

It is said in the opinion in Chase v. Lowell, 149 Mass. 85, that the St. of 1885, c. 123, § 2, in reference to shade trees standing in a highway, “ gives or leaves to the highway surveyors . . . power to apply to the proper tribunal for an adjudication that they shall be-removed.” If a tree standing in a highway is in danger of falling, the authorities whose duty it is to keep the way safe and convenient for travellers should do what they reasonably can to protect the public from it. While an application for its removal may be made to the selectmen or the mayor and aldermen by any person interested, the highway surveyor, who should keep the streets safe, is especially called upon to act. It cannot be said that his conduct is not subject to review in an action of this kind, on the ground that the mayor and aldermen are the only tribunal permitted by law to determine whether a tree should be removed; for in this case there has been no adjudication upon the subject. The question is not presented whether a city could be held liable for an accident caused by the falling of a tree just after a decision by the mayor and aldermen that it was safe and should not be removed. The legislation in regard to trees in public streets was fully considered in the opinion above referred to, and the view there expressed controls the case in its present aspect. There was no error in the instructions.

The defendant excepted to the admission of evidence of what was said by persons looking at the tree and its exposed roots while the street was being paved. This was not admitted to prove the truth of anything stated, but only upon the question whether the city had notice of the defect, or might have had notice of it by the exercise of reasonable care and diligence. Upon this question it has often been held that any facts and circumstances may be introduced which tend to show the notoriety of the defect. Reed v. Northfield, 13 Pick. 94, 98. Nowe v. Lowell, 101 Mass. 99. Harriman v. Boston, 114 Mass. 241, 245. The primary meaning of the word “ notorious,” as given by a leading lexicographer, is “ generally known and talked of by the public.” Webster’s Diet., Notorious. In Donaldson v. Boston, 16 Gray, 508, Mr. Justice Hoar instructed the jury that it must be shown, either that the officers of the city had actual notice of the defect, or that it had “continued so long, or been so notorious, that, if such officers had done their duty, or citizens passing had done their duty, they would have known it; and upon the question of notoriety, the jury might consider whether the obstruction of travel was of such a nature that if citizens, passing by, had seen it, they would have been likely to have forthwith informed such officers of its existence.” The case came by exceptions to the full court, and Chief Justice Bigelow in giving the opinion says, “ Upon the question of notice to the town, the instructions were correctly stated and properly guarded.”

The cases do not go upon the ground that notice to one or more inhabitants of a town constitutes notice to the town, but that such a state of facts may be shown as will warrant an inference that the authorities either knew, or by the exercise of reasonable diligence might have known, of the defect. While the authorities are not to be held responsible for the neglect of citizens to inform them of the existence of a defect, the fact that it was generally talked about in the community is a circumstance which may properly be considered. In such a case, notoriety derives its force as evidence, not merely from its suggestion that the defect was of such a kind that the authorities would have been likely to discover it in the first instance with their own eyes, but quite as much from the probability that their attention would have been brought by others to a matter which was generally talked about, and in which they were interested. The principle is closely analogous to that on which it has been held in many cases, that one may be found to have had reasonable cause to believe a person insolvent from the fact that he was generally reputed to be insolvent. Denny v. Dana, 2 Cush. 160. Bartholomew v. McKinstry, 6 Allen, 567: Simpson v. Carleton, 1 Allen, 109. Metcalf v. Munson, 10 Allen, 491. In the performance of their duty to discover and repair defects, officers of cities and towns should avail themselves of all the means of information conveniently to be had. Among these is the general knowledge which the people are likely to have of what affects the common interest. It would-be unjust to persons injured by defects, if cities and towns were held responsible only for such defects as the officers, regardless of information, should have first discovered with their own eyes.

In. the case at bar, it appeared that the earth had been dug away from about the tree, and the roots had been exposed a day or more while the street was being paved. The street was a thoroughfare near the centre of the city, and in that part of the street where the tree stood were two churches, a school-house, and private residences. The decayed roots were visible to persons on the sidewalk opposite, and the evidence tended to show that large numbers saw them. All this was competent evidence of the notoriety of the defect, and was not objected to. The acts of persons in looking at the roots were an important part of the evidence. From this it might be inferred that they noticed the decayed condition of the roots, and so that knowledge of the defect became general. But that evidence might properly be strengthened by introducing as a part of the res gestee the declarations which accompanied the acts, and which characterized them as acts that communicated intelligence of the condition of the tree to those who looked. The remarks made at the time rendered it certain that the view of the roots gave notice of the defect to those who then saw them. If the fact that these persons looked at the decayed roots was competent as tending to show the notoriety of the defect, then clearly the accompanying declarations which tended to show the nature of the act of looking were also competent.

There is nothing in the adjudication in Hinckley v. Somerset, 145 Mass. 326, in conflict with these views. There is language in the opinion which goes somewhat beyond the adjudication, but, as the opinion well points out, the evidence which was there held incompetent was not introduced for the purpose of showing notice or knowledge of the facts which constituted-the defect, but to show knowledge of an accident from which an inference was sought to be drawn in regard to notice of the danger resulting from the defect.

Exceptions overruled.