Noyes v. Inhabitants of Gardner, 147 Mass. 505

Noyes v. Inhabitants of Gardner

147 Mass. 505 | Mass. | 1888

Devens, J.

If the injury for which the plaintiff sought to recover in this action, he being himself in the exercise of due care, occurred by reason of a defect in the way, or that part thereof which the town was obliged by law to repair, which defect might have been remedied, or which injury might have been prevented, by reasonable care and diligence on its part, the town is responsible in damages therefor, if it had reasonable notice of the defect, or might have had notice by the exercise of proper care and diligence. Pub. Sts. c. 52, § 18.

It is quite clear that there was evidence to be submitted to the jury that the defect could have been remedied, and that the town had, or might have had, reasonable notice thereof. The *508defect consisted of a rotten plank in the sidewalk. There was testimony from several witnesses that this sidewalk was largely used, and was on one of the principal streets; that it led from Gardner to West Gardner, across a railroad track; that it was passed over daily by one of the selectmen; that it had been for some time in very bad condition; and that several of the planks composing it were rotten and decayed. Without enlarging on the evidence or attempting fully to restate it, it was sufficient to permit the jury to infer that the proper officers of the town knew, or with reasonable diligence might have known, the condition of the way. The public character of the way, the nature of the defect therein, the time which it had existed, all bore upon this question. Hanscom v. Boston, 141 Mass. 242. Hinckley v. Somerset, 145 Mass. 326. While no one, so far as the evidence shows, had previously noticed the rottenness of the individual plank, by the breaking of which the injury occurred, proper care and attention to the sidewalk would have revealed this, and a remedy could readily have been applied.

There was evidence that the place of the alleged defect and injury, although within the highway, was also within the located limits of the railroad, which crossed it at grade, and upon this fact the defendant requested a ruling that the town would not be responsible. Towns and cities are not obliged by law, within their boundaries, to keep highways in repair where other suitable provision is made therefor. Pub. Sts. c. 52, § 3. White v. Quincy, 97 Mass. 430. The defendant’s contention is, that it was the duty of the railroad company to take care and provide at its own expense for this sidewalk, especially as it formed a part of the approach to its own passenger station and platform, and that the town was thus relieved of any duty in regard to its condition. By the Pub. Sts. c. 112, § 124, it is provided that “ a railroad corporation, whose road is crossed by a highway or other way on a level therewith, shall at its own expense so guard or protect its rails by plank, timber, or otherwise as to secure a safe and easy passage across its road.” Subsequent alterations of the highway, or additional safeguards, may be ordered by the county commissioners, but this clause of the section is not here important, as no such orders were given in relation to the crossing in question. The obligation imposed *509upon the railroad corporation is not to secure a safe and easy passage across its location, but across its road as the same is prepared for travel, including, of course, the sleepers or other foundation upon which its rails are laid. Where the road consists of more than one track, these tracks, if placed near to each other, together form its road, and the space which intervenes between the tracks, as well as that between the lines of rail, is to be guarded and protected by it, as it constitutes a part of its road as the same is prepared for travel. Scanlan v. Boston, 140 Mass. 84. There is no provision that the railroad corporation shall maintain the highway within its location for ordinary travel where its railroad crosses the highway on a level, except that which is found in the provision above quoted. The character of this provision indicates clearly that it is intended to be confined to the railroad as constructed, used, and travelled, and not to the location. The liability of a town to keep its highways safe and convenient cannot be limited by implication, except to the extent to which the special obligation imposed by statute upon the railroad corporation, or the construction or operation of the railroad, deprives the town of the power to discharge the general statutory duty to which it is subjected. Jones v. Waltham, 4 Cush. 299. Davis v. Leominster, 1 Allen, 182. Johnson v. Salem Turnpike, 109 Mass. 522. Pollard v. Woburn, 104 Mass. 84. Hawks v. Northampton, 116 Mass. 420. Old Colony Railroad v. Fall River, ante, p. 455.

The town was therefore responsible for the defect in the highway, of which it had, or might have had, reasonable notice, if it could have been remedied by the exercise of reasonable care and diligence, without interfering with the construction or operation of the railroad; and as the crossing was at grade, and the railroad corporation was required by law to guard and protect its rails so as to secure to the public a safe and easy passage across its road, the general duty of the town was limited and qualified by that imposed on the railroad corporation. The town would not therefore have been responsible if the defect could not have been remedied without interference with the rights or the duties of the railroad corporation. To this effect were the instructions given by the presiding judge, and the defendant has no just ground of complaint of them.

Pxceptions overruled.