135 Mass. 273 | Mass. | 1883
There was some evidence tending to show negligence in storing the naphtha in the building, which was the cause of the injury. It is a more difficult question whether the ruling that, as matter of law, upon the evidence, the defendant was not responsible therefor, can be maintained.
The naphtha was found in the building owned by the defendant, and occupied principally by its superintendent of streets. The same substance was originally stored there in 1879, by the chairman of the committee on fuel and street lights, who was then one of the aldermen of the city; and it had been continuously kept there until some time in 1880, when the injury complained of occurred. A particular portion of the building was devoted to its storage, to which the city lamplighter, as he was
It is familiar law that a city or town is not to be held responsible for the careless acts of officers who are required by statute to be chosen, and whose duties are thereby defined. Hill v. Boston, 122 Mass. 344. Deane v. Randolph, 132 Mass. 475. This for the reason that the municipal corporation has no control over their tenure of office, nor, as a general rule, any authority to direct the mode in which their duties are to be performed.
Where a town or city undertakes to perform a duty imposed upon it by law, by means of agents whom it may direct and control, it is held responsible for the acts of those agents. Thus, where a town, although it had duly chosen surveyors of highways, voted that the selectmen should be its agents to repair the highways and bridges, which had been, injured by an extraordinary freshet, it was held responsible for a tort committed by them. Hawks v. Charlemont, 107 Mass. 414. Deane v. Randolph, ubi supra.
If a city sees fit, in the exercise of the duty imposed upon it of keeping the highways in repair, or because it deems it for the public advantage to provide for street lights by means of agents whom it furnishes with naphtha or other burning fluid, to be taken care of by them, as well as the lamps in which it may be used, it may properly do so. In such case, it would be responsible for the agents and servants whom it employed, as it could control and direct them. There was no evidence of any express authority, by vote of the city council, that the streets should be lighted by servants or agents whom the city employed. Express vote to this effect is not necessary. There was evidence that there was, and for some years had been, a committee of the city council on street lights, that the naphtha was the property of the city, kept in one of its buildings made accessible to an employee of the committee on street lights, who was a lamplighter, and that the streets were actually lighted by it. This was sufficient to raise the inquiry whether in fact these street lights were not maintained, and the explosive fluid owned, kept and used by authority of the city, and thus whether the. city
For these reasons, a majority of the court is of opinion that the entry should be New trials ordered.