323 Mass. 536 | Mass. | 1948
These are four actions of tort, two by owners for damage to their automobiles and two by occupants of one of the automobiles for personal injuries, which occurred by reason “of a hole and depression and defective condition” in Atlantic Avenue, Boston, existing because of the defendant’s negligence. The jury returned verdicts for the defendant, and the plaintiffs allege exceptions to the charge.
There was evidence as follows: On August 14, 1945, about 1:15 a.m. George A. Morrison
A condition of the permit was that the person receiving it “shall place and maintain from the beginning of twilight, through the whole of every night, over or near the place so occupied, opened, obstructed or used, and over or near any dirt, gravel or other material placed in or near such place, a light or lights sufficient to protect travellers from injury.”
The judge charged the jury in substance that, in working under the permit, the defendant’s duty was “analogous” to that of a city or town in taking care of the street; that that duty was the statutory one
The plaintiffs excepted (1) to the statement that liability in these cases was analogous to that of a city or town; (2) to that portion of the charge in which the judge read from Doherty v. Waltham, 4 Gray, 596; and (3) “to any other portion of the charge referring to the liability of the defendant being determined as of conditions existing at sunset.”
The plaintiffs have not argued their first exception. We think that it was accurate to charge that the defendant’s duty under the permit was analogous to that of a city or town. See Norwood v. Somerville, 159 Mass. 105, 110-112.
The defendant contends that the third exception is to a small, detached portion of the charge (Draper v. Cotting, 231 Mass. 51, 63), that the charge must be read as a whole, and that the jury must have understood it accordingly. Hamilton v. Boston Elevated Railway, 213 Mass. 420, 423. We assume this point in the defendant’s favor.
The defendant further contends that, as there was no evidence that “it knew or should have known that the barriers and lights had been removed or that there were any unusual conditions calling for further precautions,” the detached portion was correct. We do not agree with this contention, however, and, moreover, we think that there was prejudicial error in the related question raised by the reading from Doherty v. Waltham, which is the basis of the second exception. The case last referred to, it should be observed, arose before the days of populous cities and towns, when traffic, as we know it, was wholly unknown, and long before the appearance on our highways of the automobile and those heavy, jarring motor vehicles, the truck, the trailer, and the bus.
This case falls within the authority of Myers v. Springfield, 112 Mass. 489, which shows that the rule given in Doherty v. Waltham, 4 Gray, 596, has not been one of invariable application. In the Myers case the trial judge refused to charge in substantial conformity with that rule, but qualified it by adding, “unless the jury believe that it was the duty of the city to have made provision for receiving notice in case of removal” (page 490). This qualification was upheld by this court. At page 491, it was said: “There can be no doubt, in case of an excavation in a public way, that it would be the duty of a town not only to erect suitable barriers for the security of the traveller, but also to take
To the same effect is Norwood v. Somerville, 159 Mass. 105, where the plaintiff was hurt after dark by falling into a trench dug by the city in a street for the purpose of laying waterpipes. This court approved (page 112) a charge (pages 110-111), which was, in substance, that the city not only was under the duty to erect reasonable safeguards, but was under the further duty to maintain them thereafter. See Dolan v. Charles J. Jacobs Co. 221 Mass. 256, 258.
This principle has been applied in cases where the municipality knew or should have known that the barriers were taken down at times to permit the passage of traffic. Prentiss v. Boston, 112 Mass. 43. Howard v. Mendon, 117 Mass. 585, 590. Blessington v. Boston, 153 Mass. 409, 411-412. Fox v. Chelsea, 171 Mass. 297, 301.
Exceptions sustained.
Isabel Morrison, administratrix of the estate of George A. Morrison, was substituted as party plaintiff in the action brought by him.
The defendant was repairing a pipe, according to an admission at pretrial hearing.
The permit was issued pursuant to Revised Ordinances of 1925 of the City of Boston, c. 27, § 9, and the quoted language, is identical with that of the ordinance.
G. L. (Ter. Ed.) c. 84, §§ 1, 15.
As to the liability of a city or a town, see Hyde v. Boston, 186 Mass. 115, 118; Jones v. Collins, 188 Mass. 53, 55-56; Winship v. Boston, 201 Mass. 273, 275; Mulvaney v. Worcester, 293 Mass. 32, 34; Sullivan v. Saugus, 305 Mass. 127, 130-131.