301 Mass. 20 | Mass. | 1938
This is an action of tort brought to recover compensation for personal injuries and damage to property. At the close of the evidence the defendant’s motion for
The defendant has not argued that the evidence in its aspect most favorable to the plaintiff would not warrant the jury in finding that the injuries and damage suffered by her were caused by the defendant’s negligence, and that the plaintiff was not guilty of contributory negligence. An examination of the evidence satisfies us that, if the defendant did so contend, its contentions could not be sustained. It is therefore necessary to relate only such 'facts, as the jury could have found, which are pertinent to the consideration of the defendant’s contention that the plaintiff cannot maintain her action because she failed to give notice to the defendant of the time, place and cause of her injuries and damage under the provisions of G. L. c. 84, § 18; and the contention of the plaintiff that her action is brought, not under G. L. c. 84, § 15, relating to the liability of cities and towns for defects in highways which they are obliged by law to keep in repair, but at common law. These facts may be summarized as follows.
About 9 p.m. of the same day, the plaintiff was riding in the rumble seat of an automobile owned by her and operated by her husband. Just after they had passed over the Fore River Bridge, the plaintiff felt the car strike an obstacle in the way and was thrown forward against the front seat, and to the sides of the automobile, and sustained the personal injuries complained of. The automobile was damaged. It was brought to a stop, and, with the aid of a searchlight thrown on the way to the rear, the plaintiff saw a
The plaintiff’s declaration is not based on any statute relative to the liability of the defendant to maintain the way in repair. It could not be so grounded successfully, the highway being a State highway and one, therefore, that the defendant was not obliged by law to keep in repair. That legal duty rested upon the department of public works of the Commonwealth by G. L. c. 81, §§ 13, 18. Nor can it be said that the provision of G. L. c. 81, § 21, requiring a town (city), which digs up a State highway in case of immediate necessity, to replace the way “forthwith ... in as good condition as before,” imposed a duty upon the defendant of keeping in repair that portion of the State highway which it had opened. See Seltzer v. Amesbury & Salisbury Gas Co. 188 Mass. 242, 244. In the case just referred to it is said (pages 243-244) that the provisions of G. L. c. 84, § 18 (then R. L. c. 51, § 20) are “applicable only where the action is brought for failure to perform the duty imposed by law of keeping the way in repair .... Where, however, the action is at common law for creating a defect in the highway, . . . C§ 18] is not applicable. Hand v. Brookline, 126 Mass. 324. Fisher v. Cushing, 134 Mass. 374.” See also Miller v. Edison Electric Illuminating Co. of Boston, 283 Mass. 517, 522.
The question remaining for determination is whether the defendant is liable at common law for the injuries and damage sustained by the plaintiff by reason of the negligence of the defendant in the maintenance of its water system. Apart from statute, a municipality is not liable for negligence in the conduct of strictly public functions from the performance of which it receives no profit or advantage, because this “would involve the municipality in endless
We are of opinion that the judge'erred in directing the jury to return a verdict for the defendant. Judgment is to be entered for the plaintiff in the sum of $400, in accordance with the stipulation of the parties, and it is
So ordered.