315 Mass. 677 | Mass. | 1944
At about 8 p.m. on September 26, 1940, the plaintiff, while walking across a bridge over “a small stream” on “Bridge Street” in the defendant town, stepped into a hole in the bridge and was injured. The plaintiff brought this action on three counts. The first count, under G. L. (Ter. Ed.) c. 84, § 15, alleged that “Bridge Street” was a public highway which the defendant was bound to keep in repair, and that the plaintiff had been injured by reason of a defect therein “negligently suffered” by the defendant. The second count was based upon c. 84, § 25, which provides that a defendant who has made repairs within six years shall not deny the location of the way. The third count was based upon c. 84, § 24, which provides in substance that the proper town officer shall, if the public safety requires, cause ways dedicated to the public use which have not become public ways (§ 23) to be closed where they unite with public ways or caution the public against entering thereon, and that otherwise the town shall be liable for defects therein as in the case of public ways.
“Bridge Street” had been “opened” up as a private way in 1912 or thereabouts as part of a real estate development. It extended from Central Street, a main highway, to “Hoi
At the close of the evidence the plaintiff waived the second count. The jury found for the plaintiff on the first count and for the defendant on the third count. The defendant excepts.
There was no error in refusing the defendant’s motion for a directed verdict in its favor, which was presented at the close of the evidence. The motion was in general terms and did not differentiate among the several counts. It could not be granted because upon conflicting evidence a finding could have been made under the third count of failure to close “Bridge Street,” or sufficiently to caution the public where it entered Central Street, a public way. Tourtellotte v. Saulnier, 267 Mass. 361, 364. Shumway v. Home Fire & Marine Ins. Co. 301 Mass. 391, 396. But on this count the jury later found for the defendant.
There was error, however, in the charge which may have affected the verdict for the plaintiff on the first count. In order to prevail on this count the plaintiff had the burden of proving that “Bridge Street” had become a public way by prescription. There had been evidence that at various times the town had placed wooden horses, lanterns, and warning signs at the corner of “Bridge Street” and Central Street, and also that it had placed warning signs at the bridge itself, which was over two hundred feet from the corner, but that these barriers, lanterns, or signs would be broken or removed. In reference to this the judge charged the jury in these words: “Well, besides that there is evidence here that the town of Saugus went down there after that and posted signs at some time on that bridge that it
“The plaintiff says there were no signs when she fell; no signs there at all. But if there were signs there that would indicate that the city took upon itself some responsibility in reference to that [italics ours]; if there were signs or barriers that would be directed to the second (third) ? count, where there was a duty on a city for the safety of the public to put up signs there. ... It is a question for you whether or not they put up on that site a barrier at that intersection across the street the city exercised that right of control over that private property but never in any way acquired prescriptive rights there [italics ours]. ...
“Well, the city went down and put up signs on this private property. Well, why? There was no responsibility on a city to put signs on private property unless there was a danger to the public. And then there is a provision under the statute wherever a condition dangerous to the public in certain instances, where the city has not taken the land by prescription, if there is a dangerous condition in that street to put up these signs, in addition to barriers in order to avoid liability. But of course if you find the city had taken the street by prescription why then the town is liable, has a liability resting on it to keep that free from dangers so it would be safe for the public.”
The charge was confused and may have left the jury with the impression that not only signs at the bridge itself but even the very barriers and signs at the entrance to “Bridge Street” put up in accordance with G. L. (Ter. Ed.) c. 84, § 24, in order to avoid liability for the condition of “Bridge Street” were evidence that “Bridge Street” had become a public way by prescription; At the close of the charge this was called to the attention of the judge by counsel for the
It remains to consider the proper disposition of the case. There has been a full and complete trial of the issue whether “Bridge Street” had become a public way by prescription. In order to succeed the plaintiff must prevail on this issue. The case ought not to be sent back for a second trial if, after a full opportunity, the plaintiff has failed as matter of law to establish this part of her case, even though the defendant’s motion for a directed verdict was not separately directed to this issue. The question of law whether the evidence was sufficient to warrant a finding that “Bridge Street” had become a public way by prescription has been fully argued before us. If there was no evidence to warrant such a finding, the case should now be disposed of under the authority of G. L. (Ter. Ed.) c. 231, § 124. See Loanes v. Gast, 216 Mass. 197, 199; Weston v. Fuller, 297 Mass. 545, 548.
In our opinion there was no evidence which in law would warrant a finding that “Bridge Street” had become a public way by prescription. Most of the evidence as to use of the way is indefinite as to time, so that it is at least doubtful whether the full period of twenty years has been covered. But there is another difficulty. In order to acquire a public way by prescription it must appear, as in the case of a private way, that the use was adverse to the owner, that is, under an apparent claim of right. Sprow v. Boston & Albany
The case falls within the class of cases illustrated by Bullukian v. Franklin, 248 Mass. 151, Harvey v. Sandwich, 256 Mass. 379, and Teague v. Boston, 278 Mass. 305, and is distinguishable from Bassett v. Harwich, 180 Mass. 585, Sullivan v. Worcester, 232 Mass. 111, and Scott v. Worcester, 257 Mass. 520.
Exceptions sustained.
Judgment for the defendant.