219 Mass. 501 | Mass. | 1914
A thirty inch water pipe of the cityjn Tremont Street burst on January 3, 1910; and the plaintiff seeks to recover for property damage resulting therefrom. There was evidence that the break was due to carelessness in construction, especially in failing to support the pipes by proper bearings at places where two lengths were joined. Originally the section was laid in the middle of Tremont Street, and was changed to the easterly side of the street after the subway was built in or about 1897. The controlling question is whether the responsibility for negligence in the laying of this pipe rests upon the city or upon the Boston Transit Commission.
According to the record all water pipes in Boston are laid by the city itself, which owns and operates the system of waterworks. By St. 1894, c. 548, thé transit commission was authorized, among other things, to construct a subway through and under Tremont Street for railway purposes. Section 36 of the. act pro
The plaintiff was entitled to go to the jury on the question whether the work of relaying the pipes was in fact done by the city, and on its own account. The defendant is liable for damages resulting from the negligent performance of that work, on the same principles and to the same extent as a private corporation would be answerable under like circumstances. In constructing and maintaining its water works and distributing pipes the city is voluntarily carrying on a business for which it receives compensation, and it is acting in its private and corporate capacity, not as a public agency of the State. Hill v. Boston, 122 Mass. 344. Hand v. Brookline, 126 Mass. 324. Kelly v. Winthrop, ante, 471.
Exceptions sustained.