Ansell v. City of Boston

• Decision Date: 06 January 1926
• Citation: 150 N.E. 167,254 Mass. 208
• Parties: ANSELL v. CITY OF BOSTON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

254 Mass. 208

150 N.E. 167

ANSELL

v.CITY OF BOSTON.

Supreme Judicial Court of Massachusetts, Suffolk.

Jan. 6, 1926.

Report from Superior Court, Suffolk County; Patrick M. Keating, Judge.

Action of tort by Solomon H. Ansell against the City of Boston to recover for injuries to plaintiff's automobile truck, alleged to be due to a defect in a public way. Verdict was directed for defendant, and case was reported. Judgment to be entered on verdict.J. H. Duffy, of Boston, for plaintiff.

H. Power, Asst. Corp. Counsel, of Boston (D. Gillen, Asst. Corp. Counsel, of Boston, on the brief), for defendant.

RUGG, C. J.

This is an action of tort to recover compensation for damage to the plaintiff's automobile truck alleged to be due to a defect in a public way. In was provided in St. 1917, c. 344, pt. 4, § 24, in force at the time the cause of action arose:

‘If a person sustains * * * damage in his property by reason of a defect or a want of repair * * * in or upon a way * * * and such * * * damage might have been prevented, or such defect or want of repair * * * might have been remedied by reasonable care and diligence on the part of the * * * city * * * by law obliged to repair the same, he may, if such * * * city * * * had or, by the exercise of proper care and diligence, might have had reasonable notice of the defect or want of repair * * *, recover damages therefor from such * * * city * * *; but he shall not recover from a * * * city * * * more than one-fifth of one per cent. of its state valuation last preceding the commencement of the action nor more than four thousand dollars, and no action therefor shall be maintained by a person whose carriage and the load thereon exceeds the weight of six tons.’

The single question presented relates to the final clause of this section touching the maximum weight of the ‘carriage and load’ for which there may be recovery. The plaintiff testified that his motor truck was damaged by reason of an alleged defect in a public way in Boston; that ‘it was called a 5-ton truck.’ ‘Five tons was not the weight of the truck; it was its capacity.’ ‘There was about 2 1/2 tons on it [the truck]. Did not know weight of truck. There were 2 1/2 or 3 tons. * * * Sure there was that much on there; could not exactly say that the load weighed less than 2 1/2 tons. The load was nearer to 3 tons that to one ton.’ This was all the evidence offered by the plaintiff as to the weight of the truck and its load. An employee of the manufacturer of the truck testified:

‘That the weight of the chassis and the top of the truck testified to by the plaintiff as sold by the manufacturer was 7,250 pounds, and the weight of the truck body as sold by the manufacturer was 750 pounds.’

At the close of the evidence the court directed a verdict for the defendant. The points argued are (1) whether the motor truck of the plaintiff was a carriage within the meaning of that word in the last part of said section 24, and (2) whether on all the evidence it could have been found that the weight of the load and the truck was less than six tons.

[1] 1. It has been held that an ‘automobile is not a carriage within the meaning of that word in R. L. c. 51, § 1,’ later St. 1917, c. 344, pt. 4, § 1, and now G. L. c. 84, § 1. Doherty v. Ayer, 197 Mass. 241, 246, 83 N. E. 677,125 Am. St. Rep. 355. See Com. v. Goldman, 205 Mass. 400, 91 N. E. 392. That is not decisive of the question here presented. The words of section 1 in these three successive statutes are that the enumerated places for travel must be kept in repair so as to ‘be reasonably safe and convenient for travelers, with their horses, teams and carriages.’ In that connection, attributing to words their ordinary meaning, the word ‘teams' includes vehicles with their draft animals used for transporting heavy loads, whether of passengers, merchandise or other articles, while the word ‘carriages' indicates lighter vehicles for transporting a few persons or small articles. The weight of six tons for ‘the carriage and the load thereon’ as the maximum of liability, when first introduced into our law by St. 1838, c. 104, hardly could have referred to ‘carriages' as distinguished from ‘teams.’ Even coaches, with the horses drawing them, doubtless then in common use for conveyance of passengers, rightly would have been comprehended within the meaning of ‘teams' and more naturally would have been called ‘teams' than ‘carriages.’ Unless therefore ‘carriages' in said section 24 be given a generic rather than a narrow meaning, it scarcely would at the time it first appeared in our statute have been a limitation upon liability, as a practical matter. Yet the frame of the statute as well as its manifest purpose indicates that it was intended to be an effective limitation upon the right to recover and hence upon liability.

Although motor vehicles are not ‘carriages' within the meaning of that word in St. 1917, c. 344, pt. 4, § 1, recovery may be had for damage to them through defective highways, where other elements of liability are made out. Kelleher v. Newburyport, 227 Mass. 462, 116 N. E. 806, L. R. A. 1917F, 710;Bond v. Billerica, 235 Mass. 119, 126 N. E. 281;Lemon v. Commonwealth, 236 Mass. 599, 601,129 N. E. 382.

We are of opinion that the word ‘carriage,’ as used in said section 24, has a signification broad enough to include a motor truck.

[2][3] 2. The point to be decided respecting the weight of the motor truck and its load in its last analysis is where the burden of proof rests. The burden of proof was on the plaintiff to show that his ‘carriage and the load thereon’ did not ‘exceed the weight of six tons.’ It was not on the defendant to prove that the weight was more than the statutory limit. The rule as to the burden of proof, applicable both to criminal and civil cases, is that, where the duty or obligation or crime is defined by statute, if there be an exception in the enacting clause, or an exception incorporated into the general clause, descriptive of the duty or obligation or crime, then the party pleading must allege and prove that his adversary is not within the exception; but if the exception is in a subsequent, separate or distinct clause or statute, then the party relying on such exception must allege and prove it. Commonwealth v. Hart, 11 Cush. 130, 134;Sohier v. Norwich Fire Ins. Co., 11 Allen, 336;Commonwealth v. Lee, 247 Mass. 107, 109, 141 N. E. 607;Lunt v. AEtna Life Ins. Co. (...