Baker v. City of Fall River
| Decision Date | 22 November 1904 |
| Citation | 187 Mass. 53,72 N.E. 336 |
| Parties | BAKER v. CITY OF FALL RIVER. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Phillips & Fuller, for plaintiff.
H. A Dubuque, for defendant.
This is an action brought under the provisions of Rev. Laws, c. 51, § 18, to recover compensation for personal injuries suffered in consequence of an alleged defect in Bedford street. This street had been used for public travel for more than 30 years, and was constructed with a macadam driveway for vehicles, and with sidewalks and curbs on either side. The plaintiff was riding on the right-hand side of the driveway in an automobile, which ran into a rope stretched above the driveway across a portion of it extending from the curb to a point near the center of the street, and fastened at one end to a pole in the sidewalk and at the other end to an iron bar driven into the macadam.
1. The first question raised is whether the street had been laid out in accordance with law. The records showed a layout of the street by the mayor and aldermen by a report accepted and approved by the board of aldermen on August 22, 1871; that the report was accepted in the common council on August 24 1871, and that board of aldermen on September 4, 1871 concurred with the council in accepting the report. The defendant's contention is that the street was not a public highway because the votes of the common council and of the board of aldermen were only to accept the report, and not the layout mentioned therein. The case of Draper v. Mayor of Fall River, 185 Mass. 142, 69 N.E. 1068, is relied upon by the defendant in support of this contention. There the question was whether a sewer system had been adopted by the city, and the report which had been accepted and referred to a committee was merely a report of an engineer employed by the city to devise a system of sewerage. The action of the city in accepting the report of a mere employé and in referring it to a committee with authority to print the report in pamphlet form was not a laying out of the sewers comprised in the system, nor an adjudication that they were required by common convenience and necessity. In the present case the mayor and aldermen who reported the laying out of Bedford street in 1871 were not acting as a committee, but as a branch of the city government, and were clothed with authority to take the first step in laying out public ways by the making and filling of a report adjudicating that the way should be laid out. St. 1854, p. 178, c. 257, § 14. The statutory phrase indicating the action to be taken by the inhabitants of a town or by the legislative departments of a city government upon such a report in order to establish the way is 'accepted and allowed.' See Rev. St. 1836, c. 24, § 69; Gen. St. 1860, c. 43, § 65; Pub. St. 1882, c. 49, § 71; Rev. Laws, c. 48, § 71. The acceptance by one branch of a government of the action of another branch, when the effect of concurrence of action by both branches is to establish a new public work, indicates that the branch which accepts intends to allow the public work to be established. Accordingly a vote of the inhabitants of a town upon the report of its selectmen laying out a way that the report be accepted has been held to establish the way. Harrington v. Harrington, 1 Metc. 404. We think the records concerning the laying out of Bedford street showed its establishment as a public way for the care of which the defendant was responsible. See Masonic Building Ass'n v. Brownell, 164 Mass. 306, 309, 41 N.E. 306.
2. The defendant requested an instruction that 'the provisions of Rev. Laws, c. 51, § 1, do not apply to one driving an automobile, which is not a 'carriage' within the meaning of that statute, but may be considered more like a 'machine.' Upon the subject of this request the presiding judge said to the jury that he did not feel at liberty to instruct them that an automobile cannot be considered as a carriage, and that, although the plaintiff was in one at the time, still he was in the highway as a traveler in a mode of conveyance which, if the other elements of liability were established, would entitle him...
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