128 Mass. 583 | Mass. | 1880
The presiding justice rightly ruled that, upon the plaintiff’s offer of proof, the action could not be maintained.
There was no evidence offered that the footpaths on the common have ever been laid out as highways or town ways. The city holds the common for the public benefit, and not for its emolument, or as a source of revenue, and has constructed and kept in repair these paths as a part of the common for the comfort and recreation of the public, and not as a part of its system of highways or streets. It is not liable under the statutes for any defect or want of repair in them. Oliver v. Worcester, 102 Mass. 489. Clark v. Waltham, ante, 567.
The plaintiff contends that, if there is no statute liability, the city is liable “ as owner of the land and the maker and repairer of the way upon which the plaintiff was invited to go.” If a private person owned a similar park to which he had given the public free access, we are at a loss to see how he could be held liable for an accident like that of the plaintiff. Such person might, if he saw fit, set apart and fit for use one of the paths for th recreation of youth in coasting, and if any one should, as was tne case with the plaintiff, choose to enter upon the path, seeing that it was set apart for this purpose, he would do so at his own risk, and could not hold the owner responsible if he was injured by a passing sled. But even if a private owner would be liable, it does not follow that the city is. It maintains the common solely for the benefit of the public. If there is any legal duty to keep the paths in a safe condition, it is solely a public duty, for a breach of which no action lies by an individual who is injured, unless the statutes give such action. Clark v. Waltham, ubi supra, and cases cited. The city may legally set apart a portion of the common for the recreation of