Bowler v. Pacific Mills

• Decision Date: 05 January 1909
• Citation: 86 N.E. 767,200 Mass. 364
• Parties: BOWLER v. PACIFIC MILLS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

200 Mass. 364

86 N.E. 767

BOWLER v. PACIFIC MILLS.

Supreme Judicial Court of Massachusetts, Essex.

January 5, 1909

COUNSEL

W. J. Bradley and A. X. Dooley, for plaintiff.

J. P Sweeney and L. S. Cox, for defendant.

OPINION

KNOWLTON C.J.

The question principally argued in this case is whether the plaintiff was traveling on Canal street by invitation of the defendant, or merely as a licensee. The street was laid out and constructed by the defendant, over its own land, for its own purposes, and it has been very largely used by its employés and others, in connection with the business carried on in its mills. The testimony was uncontradicted that it would be impracticable to exclude the public from the street without interfering with the convenient use of it by the defendant and others in the defendant's business. Notices have been posted and maintained at different places where other streets open into it, indicating that it is a private way. Upon the authorities, it must be held that the very extensive use of the street by the public has been only permissive, and that members of the public, while on the street, have only the rights of licensees. Moffat v. Keeney, 174 Mass 311, 54 N.E. 850; Harobine v. Abbott, 177 Mass. 59, 58 N.E. 284; Weldon v. Prescott, 187 Mass. 415, 73 N.E. 536, 105 Am. St. Rep. 413; Reardon v. Thompson, 149 Mass. 267, 21 N.E. 369; Redigan v. Boston & Maine Railroad, 155 Mass. 44, 28 N.E. 1133, 14 L. R. A. 276, 31 Am. St. Rep. 520; Stevens v. Nichols, 155 Mass. 472, 29 N.E. 1150, 15 L. R. A. 459. In Sweeney v. Old Colony Railroad Company, 10 Allen, 368, 87 Am. Dec. 644, there was, in addition to the construction of the crossing, an invitation by the signal of the flagman. The grounds of distinction between Murphy v. Boston & Albany Railroad Company, 133 Mass. 121, Hankens v. Boston & Albany Railroad Company, 147 Mass. 495, 18 N.E. 218, and Sweeney v. Old Colony Railroad Company, ubi supra, and cases like the present, are pointed out in the three cases first above cited. It is that in these last cases there was an implied representation that the place was a public street which might be used with safety, and an inducement to use it as such, which inducement, like an express invitation, creates a duty to provide for the safety of the users. In the present case the public were informed by the notices along the street that this was a private way.

The measure of the defendant's...