307 Mass. 169 | Mass. | 1940
The plaintiffs, together with several hundred persons, were standing upon Madison Street near the corner of Beacon Street (both public ways in Worcester) on October 21, 1936, for the purpose of seeing the President of the United States as he passed along the ways, and were injured by the fall of a traffic light pole, located upon the sidewalk. The pole fell into the street when efforts were being made by the police and members of the crowd to push down the middle of a rope that extended across Madison Street and was attached to the traffic pole close enough to the surface of the street to permit an automobile to pass over it, or when one of the front wheels of this automobile struck and ran over the rope after it had been forced down to a short distance above the street. Each of the three plaintiffs brought an action based on negligence against Casey, the operator of the automobile, and against Athy, the owner of the automobile. Each also brought an action against the city of Worcester, the owner of the pole, on the ground that the maintenance of the pole constituted a public nuisance. Some of the plaintiffs also brought actions against the Worcester Electric Light Company which supplied electricity to the signals located on the pole, but during the hearings before the auditor, to whom all the above mentioned actions had been referred, these last named plaintiffs, including Whalen, terminated their cases
We first consider the case of Whalen v. Worcester Electric Light Company. The plaintiff brought a petition for a writ of review so that the action could be brought forward and tried as if the agreement for judgment for neither party had not been filed. After a hearing, the judge found that counsel for the plaintiff, who was desirous of attending to some other matter, arranged with an attorney who was then engaged in the trial of these cases before the auditor “to follow the case for him and report on the progress, and if any matter came up that he should be notified of it, to notify him.” At the close of the hearing on that day, counsel for the plaintiffs in the cases against this defendant agreed that they had no case against this defendant and consented to the entry “neither party.” The attorney with whom the plaintiff’s counsel had arranged “to follow the case for him” conferred with the plaintiff, informing him that the other plaintiffs had abandoned their cases against this defendant and asked Whalen what he should
The entry by agreement “neither party” was a final disposition of the action but no judgment could be rendered upon it by the court. Marsh v. Hammond, 11 Allen, 483. White v. Beverly Building Association, 221 Mass. 15. Shapiro v. Lyon, 254 Mass. 110. Moreover, the docket entries show that there had been no entry of a final judgment. There being no final judgment, there was no ground upon which the petition could be brought. Commonwealth v. Marsino, 252 Mass. 224, 228. Fowler v. Lee, 263 Mass. 440. Cherry v. Cherry, 253 Mass. 172, 176. Although this point was not raised by counsel, the present proceedings are entirely statutory and a judge has no power to grant relief when the very foundation upon which the statute can operate is lacking. The petition should have been dismissed.
Incidentally it might be said that the same result would be reached on the merits if the case were properly here, for it is clear from the findings that the entry by agreement “neither party” was authorized by the plaintiff Whalen and that there was no merit in the plaintiff’s case, a fact which it seems the judge would have readily discovered if he had investigated it upon the hearing upon the petition, in view of his subsequent action in directing a verdict for the defendant upon the opening by the plaintiff’s counsel. Mellet v. Swan, 269 Mass. 173, 177. Russell v. Foley, 278 Mass. 145, 148. Woods v. Woods, 290 Mass. 392. Hyde Park Savings Bank v. Davankoskas, 298 Mass. 421. Medford v. Corbett, 302 Mass. 573, 575. The plaintiff’s exceptions to the action of the judge in directing a verdict for the defendant have no standing as they fall with the dismissal of his petition for a writ of review.
In the cases against Casey and Athy the judge, in the course of his charge, told the jury that “We all know that,
We do not intimate, if the point were open, that there was any error in that portion of the charge above set forth. The jury were properly told that as a general proposition one should obey the directions of an officer but that obedience to such directions would not fr.ee one from the imputation of negligence if he ought to have foreseen the consequences, and that one’s conduct must be judged by that of an ordinarily careful and prudent individual. The charge was in accord with established principles. An operator of
The right of action against a city to recover damages for personal injury to a traveller on account of a defect in a public way is created and limited by the statute. G. L. (Ter. Ed.) c. 84, § 15. Hurlburt v. Great Barrington, 300 Mass. 524. Longley v. Worcester, 304 Mass. 580. A defect may be anything that renders the way inconvenient | or unsafe for ordinary travel. Gregoire v. Lowell, 253 Mass. 119. Adams v. Bolton, 297 Mass. 459. It is not G restricted to conditions appearing upon the surface of the way but may extend to obstructions overhanging the way and to structures and objects that may fall on or in the way. Drake v. Lowell, 13 Met. 292. Day v. Milford, 5 Allen, 98. West v. Lynn, 110 Mass. 514. Hayes v. Hyde Park, 153 Mass. 514. Griffin v. Boston, 182 Mass. 409. Donohue v. Newburyport, 211 Mass. 561. Valvoline Oil Co. v. Winthrop, 235 Mass. 515. It is not necessary to determine whether the pole in question could be found to be a defect, because no such contention is made. See Barber v. Roxbury, 11 Allen, 318; Pratt v. Weymouth, 147 Mass. 245, 252. The statute, G. L. (Ter. Ed.) c. 84, § 15, does not give a right of action based upon the existence of a nuisance as distinguished from a defect — see Kerr v. Brookline, 208 Mass. 190; Delamaine v. Revere, 229 Mass. 403 — but this statute clearly manifests an intent that a traveller who is injured on account of the breach by a municipality of the statutory obligation to keep the ways “reasonably safe and • convenient for travelers,” G. L. (Ter. Ed.) c. 84, § 1, shall have no other remedy against the municipality. The Legislature in creating a remedy has set forth the specific grounds upon which a municipality may be held liable for an injury sustained by a traveller upon a public way, and at the same
A city, however, is liable at common law to one injured on account of dangerous conditions of a public way that resulted from negligence of the city, its agents or servants, in constructing or maintaining a project commercial in nature and undertaken for its own profit. Sloper v. Quincy, 301 Mass. 20. Horton v. North Attleborough, 302 Mass. 137. Baumgardner v. Boston, 304 Mass. 100. But in the present case the only functions of the pole were to furnish support for a set of signals regulating the movement of traffic and to display a sign forbidding the parking of automobiles within certain hours. This was the performance of a governmental duty in the interest of the
The plaintiffs rely upon Jones v. Great Barrington, 273 Mass. 483, where a second count of a declaration was held to set forth allegations warranting liability of a town on the ground that an old decayed tree in control of the town, which fell against the plaintiff’s house, was found to constitute a nuisance. A town, as a landowner, is liable as an individual would be if it uses its premises in such a way as to damage the land of its neighbor. Towner v. Melrose, 305 Mass. 165, and cases cited. The principle is not applicable here because the city did not own the street and it could not be held liable as a landowner. The damages sought in this count in the Jones case were those sustained by a building of the plaintiff upon land bounding on a public way and not, as here, for personal injuries sustained by persons while on a public way.
The result is that in the case of Whalen against the Worcester Electric Light Company the defendant’s exceptions to the granting of the petition for a writ of review are sustained and the plaintiff’s exceptions in that case are dismissed. In the cases against Casey, Athy and the city of Worcester the plaintiffs’ exceptions are overruled.
So ordered.