130 Mass. 492 | Mass. | 1881
Under the instructions given them, the jury must have found that the defendant negligently constructed its track so as to create an obstruction or defect in the highway, by reason of which the wife of the plaintiff was injured.
At common law, the defendant would be liable to any person injured by such negligence. The statute, in affirmance of the rule of common law, provides that “ every corporation, its lessees or assigns, shall keep in repair such portions of any paved streets, roads and bridges as are occupied by its tracks; and when such tracks occupy streets or roads that are not paved, it shall, in addition to the portion occupied by its tracks, keep in repair eighteen inches on each side thereof, to the satisfaction of the superintendent of streets, the street commissioner or the surveyors of highways, and shall be liable for any loss or injury that any person may sustain by reason of any carelessness, neglect or misconduct of its agents and servants, in the construction, management and use of its tracks.” St. 1871, c. 381, § 21.
The defendant asked the court to rule that, “ if the tracks of the defendant corporation were constructed in conformity with
These rulings were sufficiently favorable to the defendant. If a street-railway corporation, by the carelessness of its agents or servants, constructs its track so as to create a nuisance or defect in the street, the law makes it liable to any person injured by such carelessness, and the fact that the superintendent of streets is satisfied with the construction does not make it any less a defect, or exonerate the corporation from its liability to the person injured. The statute makes the corporation “ liable for any loss or injury that any person may sustain by reason of any carelessness ” in the construction of the tracks, and does not make the judgment of the superintendent of streets the conclusive test of the liability.
The defendant also asked the court to rule “ that no action for loss of services can be maintained against a street-railway corporation for the negligence of its servants in the construction and maintenance of its tracks in a highway, but that its liability for such negligence is limited to the person who receives bodily injury or damage in his property by reason of a defective construction caused by such negligence.” The court refused this request, and ruled that the plaintiff could recover for the expense of the cure of his wife and for the loss of her services and society. These rulings were correct. The rule of damages adopted by the court is the rule at common law, and the statute does not restrict or limit the common law liability. It makes the corporation liable, in the broadest terms, for any loss or
Exceptions overruled.