Wilson v. City of Boston

117 Mass. 509 | Mass. | 1875

Wells, J.

The location of the highway was not disputed. The city -was not bound to keep in repair the approaches to the oridge over the railroad, although within the admitted limits of the highway, because other provision had been made therefor. Gen. Sts. e. 44, § 1, and c. 63, § 61. White v. Quincy, 97 Mass. 430. The fact that the city had made some repairs upon the approaches did not relieve the railroad of its obligation, nor impose an additional obligation upon the city. The Gen. Sts. c. 44, § 26, — Eev. Sts. c. 25, § 26,—relied on by the plaintiff, do not impose any duty nor declare any liability. The statute was adopted originally to remedy the difficulty of proving the legal establish ment of ways, arising from absence or defects of records thereof. Its purport is nothing more. To construe it as concluding all question of liability would make every individual, who should voluntarily repair a defective way, liable for any injury that might occur thereon during the next six years. The statute makes no distinction between a county, town or person.

Ordinarily, proof of repairs made within six years would be conclusive upon the liabili'y of a town for defects; because, ordinarily, and primé facie, that liability results from any legal proof of the location of the way. But when it does not so result, as, by reason of the exception referred to, where other provision is made therefor, then it will not result from the fact of repairs made within six years. The remark quoted from the opinion in Commonwealth v. Deerfield, 6 Allen, 449, must be understood with this qualification. The construction of this statute was not involved in the decision in that case, and the remark was casual and by way of illustration, rather than of precise definition.

The rulings and instructions at the trial upon this point were erroneous. The instruction requested should have been given.

Verdict set aside.