208 Mass. 190 | Mass. | 1911
This case comes before us on the plaintiff’s appeal from an order
The plaintiff contends that she can recover as for the maintenance of a nuisance. It is strongly intimated in Lincoln v. Boston, 148 Mass. 578, 580, that a landowner is not “ liable for a transitory act of a third person, the scope of which cannot be enlarged by calling it a public nuisance, and which has in it no element of continuing use of the real estate.” In the present case the town is not the owner of the playground in any ordinary sense. The property is held under the statute, solely for a public use. B. L. c. 28, § 19. St. 1910, c. 508. Then, too, the setting off of fire works on a single occasion does not create any permanent or continuing condition of the real estate, such
The plaintiff also seeks to hold the defendant under the statute in regard to defects in highways. The sending up of a rocket from a highway or across a highway is not a defect or want of repair in the way.
The case is somewhat like Barber v. Boxbury, 11 Allen, 318, in which it was held that a rope in a highway, drawn up by human agency, did not constitute a defect, although that case was much stronger for the plaintiff than the present one. In Pratt v. Weymouth, 147 Mass. 245, 252, it was held that a derrick standing in a highway, that fell on the plaintiff as he was passing, was not a defect in the way for which the town was liable. It has often been held that objects or sounds outside of a way, that frighten horses as they pass, are not defects in the way. We think it plain that the present case is not within the statute creating a liability for defects in ways.
In every aspect of the case the only ground of liability is the alleged negligence of the person or persons representing the town, and for this the town is not liable.
Judgment affirmed.
By Pierce, J.