These are actions to recover for injuries received by the plaintiffs while travelling upon a public way in the defendant city by the fall of a limb of a shade tree which stood within the limits of a public way, and which had been for more than thirty years under the care of the defendant.
There was evidence sufficient to support a finding that the plaintiffs were in the exercise of due care, and that the limb had been so dangerous by reason of decay and consequent liability to be blown down by ordinary winds as to attract attention for more than a year. While the declaration might have been more exact in its averments, it is susceptible of the con
Statutes respecting the care and responsibility for the condition of shade trees by municipalities have been several times the subject of judicial inquiry. In Chase v. Lowell, 149 Mass, 85, all the statutes up to that time, including St. 1885, c. 123, were reviewed, and the conclusion was reached that a highway surveyor in a city or town had no power summarily to remove a shade tree standing in the highway, but that the question, whether such tree incommoded or endangered travellers and ought to be removed, should be determined by the adjudication of a tribunal designated by the statute for that purpose. The same case was again before the court in 151 Mass. 422, where the duty of the highway surveyor, as to a dangerous shade tree in a public way, to apply to the authorities for an adjudication, was emphasized, and the municipality was held liable for injury to a traveller if after notice of such dangerous tree the highway surveyor took no action. This case related to the removal and not to the trimming of a shade tree. The subject was again discussed in Washburn v. Easton, 172 Mass. 525, where the town was exonerated from liability for injuries resulting from shade trees in healthy condition set out under the direction of public authorities. Statutes respecting shade trees have been enacted since 1885, some of which were adverted to in Sharon v. Smith, 180 Mass. 539, Hall v. Wakefield, 184 Mass. 147, Commonwealth v. Morrison, 197 Mass. 199, 205, and Commonwealth v. Byard, 200 Mass. 175. St. 1890, c. 196, St. 1891, c. 49, St. 1892, c. 147, and St. 1893, c. 403, relate only to the designation and marking of trees, standing in highways, as public shade trees, by boards of aldermen and selectmen, and to penalties for injuries to trees. St. 1893, c. 423, § 26, committed to the superintendent of streets in towns, under the direction of the selectmen, “ the care and preservation of shade trees.” St. 1896, c. 190, was an enabling act merely, and authorized towns to elect a tree warden and
If, however, it be assumed that the injury to the plaintiffs was due to a dangerous tree which could have been remedied only by its removal, and not by its trimming, the defendant has shown no error in the trial. There was testimony from several witnesses that the threatening condition of the tree had been plain for more than a year. On this showing, which the jury by their verdict under the instructions given must have found to be true, the officer charged with the care of the streets forthwith ought to have instituted proceedings before the appropriate public board to have the tree removed, and in the meantime by signs or otherwise to have warned the travelling public of the danger. It would have become the immediate duty of the public board to adjudicate that the tree should be removed. It must be assumed that such public board would act promptly and in accordance with the evidence. Seemingly no effort to this end had been made. On the contrary, the officer, whose duty it was to report any such danger to the proper city department, testified that he had never done so. No attempt to guard
The foreman of the defendant’s street department, after testifying that four trees were blown down during the storm in which the plaintiffs were injured, was asked, “Has there ever been a time when there was more than four trees blown down in the city in any one day ? ” This was excluded against the defendant’s exception. Ho offer was made of what answer was expected, and the exception should be overruled on this ground. But assuming it would have been favorable to the defendant, the inquiry was properly excluded in the discretion of the trial judge as likely to lead aside into collateral matters and divert attention unduly from the main issue.
Exceptions overruled.