City of Lowell v. Glidden, 159 Mass. 317

159 Mass. 317 | Mass. | 1893

Lathrop, J.

It must be conceded in favor of the plaintiff, that, if a person has created a nuisance in a public street, and a city is in consequence thereof obliged to pay damages to a traveller on the street, the fact that the city is in fault in not removing the nuisance does not make it in pari delicto with the creator of the nuisance,- and prevent recovery against him. Lowell v. Boston & Lowell Railroad, 23 Pick. 24. Lowell v. Short, 4 Cush. 275. Swansey v. Chace, 16 Gray, 303. West Boylston v. Mason, 102 Mass. 341. Woburn v. Boston & Lowell Railroad, 109 Mass. 283. Campbell v. Somerville, 114 Mass. 334. Westfield v. Mayo, 122 Mass. 100. See also Churchill v. Holt, 127 Mass. 165, and 131 Mass. 67; Old Colony Railroad v. Slavens, 148 Mass. 363.

For the purposes of the case we may assume, without deciding, that the responsibility of the defendant is the same as if the premises at the time she purchased them had not been in the possession of a tenant at will of her grantor, and she had then let them to a tenant at will, without making any contract as to repairs. See Dalay v. Savage, 145 Mass. 38, and cases cited; Clifford v. Atlantic Cotton Mills, 146 Mass. 47; Lufkin v. Zane, 157 Mass. 117.

The difficulty in the plaintiff’s case lies deeper. The judge who tried the case in the court below has found no fact which is so conclusive against the defendant that we can say, as matter of law, that judgment ought to be entered for the plaintiff. The sunken area is not on the land of .the defendant. It was made by some person other than the defendant, and she did nothing to maintain it. Whether it was made by a former owner of the house is not found. The report states that the well and the sidewalk were not built until after the erection of the building, but whether they were built by the then owner of the building or by the city does not appear. Although the judge finds that the bricks which line the sunken area abut against the foundation wall of the defendant’s building, and are united to it by cement, and that the area was constructed for the purpose of lighting the cellar of the defendant’s building, it cannot be said that these facts are conclusive in favor of the plaintiff. There is nothing to show that all this was not done by the agents or servants of the city when the sidewalk was built, under a mistaken belief as to the location of the boundary line between the street and the adjoining land. - Judgment for the defendant.