Bowman v. City of Newburyport

• Decision Date: 31 December 1941
• Citation: 38 N.E.2d 682,310 Mass. 478
• Parties: BOWMAN v. CITY OF NEWBURYPORT (two cases).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

310 Mass. 478

38 N.E.2d 682

BOWMAN

v.CITY OF NEWBURYPORT (two cases).

Supreme Judicial Court of Massachusetts, Essex.

Dec. 31, 1941.

Exceptions from Superior Court, Essex County; Giles, Judge.

Actions of tort by George Bowman, p. p. a., and by George Bowman, against the City of Newburyport, to recover for injuries and for consequential damages, wherein the jury returned a verdict for the plaintiff in each action in the sums of $2,000 and $2,844.70 respectively but under leave reserved and subject to plaintiff's exceptions, verdicts were entered for the defendant and the plaintiff brought exceptions.

Exceptions of the plaintiff seeking consequential damages overruled and exceptions of the other plaintiff sustained.

Before FIELD, C. J., and DONAHUE, QUA, COX, and RONAN, JJ.

B. F. Thornburg, of Waltham, for plaintiff.

M. G. Ayers, City Sol., of Newburyport, for defendant.

COX, Justice.

These are two actions of tort, tried together. The plaintiff in the first action, a minor, seeks to recover damages for personal injuries, and the plaintiff in the second, his father, to recover for consequential damages. The jury returned a verdict for the plaintiff in each action, but, under leave reserved and subject to the plaintiff's exceptions, verdicts were entered for the defendant. It is apparent that the declarations are drawn under G.L. (Ter.Ed.) c. 84, § 15, to recover damages for a defect in a public way.

The jury could have found that at about eleven o'clock in the forenoon of November 15, 1939, the minor plaintiff, who was then three and one half years old, while walking on the sidewalk of a public way, was severely burned when a gust of wind blew ‘all over him’ some of the lighted embers of piles of leaves that had been raked into the gutter and burned. It was a ‘clear, rather cold day but the wind was blowing quite strong at times,’ and there was no one in attendance at the piles of embers when he was injured. On the day in question, the leaves were raked and set afire under the direction of the defendant's superintendent of streets by an employee of the street department who testified that, after the various piles had burned, and when he ‘felt’ that they were all burned, he swept the ashes and some leaves that had been around the outer edges and had not burned into the gutter and left. No permit had been obtained to set the fire. See G.L.(Ter.Ed.) c. 48, § 13, as amended by St.1938, c. 204. There were from ten to fifteen piles, and in many instances there would be leaves in the gutter and around the outer edges that would not burn up quickly but would smoulder, and when they were swept into the gutter they would take fire again. At about one o'clock in the afternoon some leaves in the gutter and around the edges of the piles were still smoking; the face and top of the curbstone where the leaves had been burned were ‘all black,’ and the burned area was four or five feet out from the gutter and six to ten feet long, ‘in kind of a circle.’

An ordinance of the defendant (G.L.(Ter.Ed.) c. 4, § 7, Thirty-Fourth; c. 40, § 21) provides, among other things, that the mayor, subject to the approval of the city council, shall appoint annually a superintendent of streets and sewers who shall have all the powers, perform the duties and be subject to the liabilities and penalties of surveyors of highways and road commissioners. Among others, his duties, therein defined, are that he shall keep the streets clean and in good order and shall remove all nuisances, obstructions and encroachments therein or give notice thereof to the city marshal.

It becomes important to determine first whether the jury were warranted in finding that there was any defect within the meaning of said § 15. In the case of McCulloch v. Inhabitants of Needham, 217 Mass. 227, 104 N.E. 484, the plaintiff was severely burned when he stepped upon a smouldering fire of dead leaves in the highway that was alleged to constitute a defect in the way. But the court did not determine whether a defect existed. We are of opinion that, upon this record, the the mere presence upon the highway of the leaves did not constitute a defect, nor did the leaves when raked into piles. But we are of opinion that it cannot be said that the jury could not find that when these piles were set on fire and left in the circumstances that could have been found, they constituted a defect. Barber v. City of Roxbury, 11 Allen 318, 320. See Gregoire v. City of Lowell, 253 Mass. 119, 121, 148 N.E. 376;Adams v. Town of Bolton, 297 Mass. 459, 464, 9 N.E.2d 562;Whalen v. Worcester Electric Light Co., 307 Mass. 169, 174, 29 N.E.2d 763, objects resting upon the surface of a properly wrought way, if of a nature to obstruct travel, have been held to make the way defective. Griffin v. Boston, 182 Mass. 409, 410, 411, 65 N.E. 811, and cases cited. See Kelleher v. City of Newburyport, 227 Mass. 462, 465, 116 N.E. 806, L.R.A.1917F, 710;Mulvaney v. City of Worcester, 293 Mass. 32, 199 N.E. 405. The case at bar is distinguishable from cases where it has been held that a merely temporary condition, as, for example, where the cover of a manhole is removed while the sewer is being cleaned, is not a defect in the highway. See Norris v. City of Newton, 255 Mass. 325, 327, 151 N.E. 291, and cases cited. It is also distinguishable from cases where it has been held that the alleged defect was not the direct cause of the injury sustained.

The leaves were raked and burned by an employee of the street department upon the order of the superintendent of streets. The defendant does not contend that the minor plaintiff was contributorily negligent, but it does contend that whatever was done in the case at bar was done by the superintendent of streets who had the powers and duties of a highway surveyor, see G.L.(Ter.Ed.) c. 41, §§ 62, 64, 68, and for whose conduct it is not responsible. However, it is of no consequence whether the defendant is responsible for any negligence of the superintendent of streets. Its liability in the case at bar is founded upon its failure to keep its streets reasonably safe for travel, and to remedy, upon notice, a condition likely to be dangerous. That might be found to exist quite independently of any liability for negligence of its superintendent of streets. Barber v. Roxbury, 11 Allen 316, 320;Pratt v. Inhabitants of Cohasset, 177 Mass. 488, 59 N.E. 79;Kelleher v. City of Newburyport, 227 Mass. 462, 465, 116 N.E. 806, L.R.A.1917F, 710.

The question next arises whether the city had, or might have had, reasonable notice of the defect. The work in question was being done...