Andresen v. Town of Lexington

• Decision Date: 03 March 1922
• Citation: 134 N.E. 397,240 Mass. 517
• Parties: ANDRESEN v. TOWN OF LEXINGTON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

240 Mass. 517

134 N.E. 397

ANDRESEN

v.TOWN OF LEXINGTON.

Supreme Judicial Court of Massachusetts, Middlesex.

March 3, 1922.

Exceptions from Superior Court, Middlesex County.

Action of tort by Andreas H. Andresen, administrator of Ethel Andresen, deceased, against the Town of Lexington, for the death of his intestate, a child seven years old, caused by the limb of a tree falling on her while on a public way in such town. The court found for plaintiff in the sum of $750 and defendant brings exceptions. Exceptions sustained.

The case was tried without a jury on an agreed statement of facts which showed that the injury occurred between 8 and 8:30 a. m., that a police officer of the town observed the limb which struck the intestate about 4:45 a. m. and notified the officer in charge of the police station, and that later the lastnamed officer accompanied by the Edison Company's trouble man went to the premises and observed the limb, then resting on the telegraph wires, but took no steps to remove it. It was agreed that, if on the agreed facts and any inferences that might reasonably be drawn therefrom a jury would be warranted as matter of law in finding that plaintiff's intestate was injured by a defect in the street and that the notice to the police officers was notice to the town and that such notice as was given was reasonable notice under all circumstances, plaintiff was to have judgment in the sum of $750, and that otherwise judgment was to be entered for defendant. Defendant requested a ruling, among others, that the conditions with reference to the limb which caused the intestate's death did not constitute a defect in the street.

John G. Brackett, of Boston, for plaintiff.

Robert L. Ryder, of Boston, for defendant.

DE COURCY, J.

While the plaintiff's intestate was proceeding along the sidewalk of a public way in East Lexington, between 8 and 8:30 a. m. on June 6, 1919, the limb of an ornamental shade tree growing on private property, the branches of which overarched the sidewalk, fell upon her. This limb became partially severed from the trunk of the tree about 4:30 a. m., when it was struck by a dead limb growing a foot higher up which was blown off by the wind; and at some time between 5:30 and 7:30 a. m. the severance became complete. In the meantime it remained cradled in the telegraph wires, which hung about 15 feet above the gutter between the sidewalk and the street, until it fell therefrom at the time of the accident. This action was brought under St. 1917, c. 344, p. 4, § 23 (now G. L. c. 229, § 1), to recover damages for the death of the intestate. The liability of the defendant is purely statutory; and the fundamental question is whether the limb which caused the death was a ‘defect’ in the way, within the meaning of the statute.

The duty of towns to keep the public ways ‘safe and convenient for travelers' (G. L. c. 84, § 1) does not render them liable for every danger and inconvenience to which a traveler upon the highway may be subjected. It is true that actionable defects are not limited to obstructions and excavations in the roadbed. A wire sagging within a foot of the ground, in such a manner as permanently to obstruct travel (Hayes v. Hyde Park, 153 Mass. 514, 27 N. E. 522, 12 L. R. A. 249), or a limb growing over the traveled part of the way so near the surface of the street as to be an obstruction to persons properly traveling thereon (Valvoline Oil Co. v. Winthrop, 235 Mass. 515, 126 N. E. 895), may be found to be a defect in the legal sense, which the town is bound to remedy. It has been held that the statute extends to injuries caused by unsafe awnings, projecting over and across a sidewalk, and supported upon posts at the curbstone. Drake v. Lowell, 13 Metc. 292;Day v. Milford, 5 Allen, 98. And on the authority of those cases the city was held liable in West v. Lynn, 110 Mass. 514, for injuries caused by the fall of a pole, which rested on the sidewalk, and supported a transparency. However, it was said in Hixon v. Lowell, 13 Gray, 59, 64...