Sullivan v. City of Boston

126 Mass. 540 | Mass. | 1879

Morton, J.

The place where the plaintiff was injured was not within the limits of a highway located and laid out by the city of Boston. There is no evidence which- would justify the jury in finding that it was within a footpath dedicated to public, use and travel by the city. It was within the school-house lot or yard, left open and graded for convenience of access to the school-house. The fact that this open yard or space was not separated from the sidewalk by a fence is not sufficient to show that it was dedicated to general public use as a part of the system of the highways of the city. Stockwell v. Fitchburg, 110 Mass. 805.

The provisions of the Gen. Sts. c. 43, §§ 82, 83, do not apply to the case. As stated in Oliver v. Worcester, 102 Mass. 489, the reason of these provisions “obviously was, that, while no new highways or town ways were to be made chargeable upon cities and towns, unless regularly laid out in the manner prescribed by law, there might be ways opened and laid out, connected with the public ways, and apparently themselves public ways, which travellers would have no means of knowing were not legally laid out and kept in repair as such; ” and therefore cities and towns were required to close up such ways, or caution the public against entering on them, under the penalty of being liable for defects therein if they failed to do so. The open space in front of the school-house cannot in any just sense be called “a way entering on and uniting with” the public highway. The case is not within the letter or the spirit of the statute.

It follows that the defendant is not responsible, because the injury to the plaintiff was not caused by a defect in a highway, or in a way connected with a highway, for which it is liable. As we have before said, the place where the injury happened was in the school-house yard or lot, and, even if the city allowed this to be defective and dangerous, it is not liable therefor. Hill v. Boston, 122 Mass. 844. Bigelow v. Randolph, 14 Gray, 541.

Judgment on the verdict.