Hawes v. Inhabitants of Milton

213 Mass. 446 | Mass. | 1913

Braley, J.

The defendant by the St. 1865, c. 192, § 3, was required not only to care for and maintain that portion of the drawbridge extending to the centre of the draw and lying within the limits of the town, but under R. L. c. 51, §§ 1, 18, to keep it in a reasonably safe condition for the use of travellers. If, without deciding, it be assumed that the plaintiff’s automobile was being operated lawfully and the question of his due care was for the jury, yet he cannot recover without some proof that the damage to his property was caused by either a defective condition of the bridge which in the exercise of ordinary diligence the defendant should have known of and remedied, or by the negligence of some person for whose acts the town can be held liable. Lyman v. Hampshire, 140 Mass. 311. Stoliker v. Boston, 204 Mass. 522.

The facts are not in dispute. The county commissioners constructed the bridge as directed by the Legislature, with a draw in the centre to be operated by a draw tender provided at the joint expense of the defendant and the town of Dorchester, which was required to care for and maintain the other portion of the bridge “lying on its own side.” It was further enacted that “said towns shall be jointly liable to raise the draw and afford all necessary and proper accommodation to vessels having occasion to pass by day or by night.” The draw equipped with trap doors estimated to have been from two to three feet wide and extending transversely the width of the bridge, opened in two parts which had to be raised and lowered separately.

The exceptions recite that “the opening of the trap doors was a necessary part of the operation of the drawbridge, and there was no evidence of any defect in the bridge or in any of the machinery by which the draw was operated.”

In the early evening of the day of the accident the plaintiff was driving in his automobile with the lamps lighted, and slackened speed, as he approached the bridge; but the draw, very shortly before, had been opened to permit the passage of a boat, and through the inadvertence of the draw tender the sections when closed did not properly lock and overlap. To bring them into adjustment it became necessary again to raise and lower each section. The trap doors at each end were accordingly opened, but apparently there was not sufficient time to close the door on the defendant’s side before the automobile came by and struck the open trap.

If the aperture caused the highway to be unsafe for the use of vehicles, this condition was of transitory duration, and the opening of the draw for the passage of vessels or for its readjustment immediately after the vessel had passed having been necessary and lawful, a defect within the meaning of the statute for which the town should be held responsible has not been shown. Butterfield v. Boston, 148 Mass. 544.

The plaintiff must rely therefore on the alleged carelessness of the draw tender. But, if the jury could have found that he was careless because he did not seasonably ascertain whether travellers were approaching or were attempting to pass, the plaintiff does not allege that he was incompetent, and his negligence cannot be imputed to the town. If by § 3 it is made responsible in reasonable damages to the owners or masters of vessels “unreasonably delayed or hindered in passing said draw” through his negligence, he is not as to travellers the servant or agent of the defendant, but in the discharge of his duties acts as a public officer, personally answerable for his own misfeasance. Nowell v. Wright, 3 Allen, 166. Butterfield v. Boston, 148 Mass. 544. Moynihan v. Todd, 188 Mass. 301.

Judgment for the defendant on the verdict.