Breen v. Field

• Decision Date: 21 October 1892
• Citation: 31 N.E. 1075,157 Mass. 277
• Parties: BREEN v. FIELD et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

157 Mass. 277

31 N.E. 1075

BREEN v. FIELD et al.

Supreme Judicial Court of Massachusetts, Franklin.

October 21, 1892

COUNSEL

C.G. Delano, for plaintiff.

W.S.B Hopkins, F.L. Greene, and F.B. Smith, for defendants.

OPINION

MORTON, J.

This is an action of tort against the defendants, as selectmen of the town of Greenfield, for negligence in failing to provide suitable means of support for the sides of a trench in which they had employed the plaintiff to lay pipe for the purpose of building a public sewer in one of the streets of Greenfield. The plaintiff contends that he was in the exercise of due care, and that, in consequence of the want of support, the sides of the trench fell in upon him while at work. There was testimony that the sides of the trench were not safe, and the jury might have found, properly enough that if they had been supported they would not have fallen in. As to the plaintiff's case, it appears that, although he was an old hand at building sewers, there was testimony tending to show that there had been a washout a short time before, of which he was ignorant, at the place where the falling in occurred, and that this caused the falling in. The extent to which he dug out the sides of the trench to lay the pipe, and whether that had anything to do with the falling in, and whether he was in the exercise of due care in doing it, were all questions for the jury. It cannot be said that he assumed the risk, when he was ignorant of facts on which, perhaps, a proper appreciation of the risk depended. Whether he was or was not ignorant of them, or whether he could have failed in the exercise of due care to observe the condition of the sides of the trench, were also questions for the jury.

The remaining question is whether there was any evidence tending to show that the injury to the plaintiff was due to the neglect by the defendants of any duty which they owed to him. We think there was. The injury to the plaintiff did not result from a defect in the plan of the sewer. It occurred in the course of its construction, through a failure to support the sides of the trench. The building of the sewer was in the control of the defendants. They did not superintend or direct the work of its actual construction, although there is evidence that the chairman was there occasionally, but not everyday, while it was building; but they hired the plaintiff and Day, the engineer, and Waite, the superintendent, and furnished the material that was required in its construction. In building the sewer they were performing a ministerial duty, for the benefit of the town. This duty belonged to them by virtue of their office, but was nevertheless ministerial. Murphy v. Lowell. 124 Mass. 564. The sewer when built belonged to the town, but its construction was not authorized by the town in the performance of a duty imposed by general laws upon it, and on other towns and cities, for the general benefit; like those, for instance, requiring schools for children between certain ages. The construction was authorized by the town for its benefit and that of its inhabitants. The defendants themselves employed the plaintiff, as they had the right to do, to lay pipe in the bottom of the trench. The case is not, therefore, one in which they employed a competent superintendent, who employed and set the plaintiff to work in the place where he was injured. Whatever the effect of...