O'brien v. City of Worcester

• Decision Date: 06 January 1899
• Citation: 172 Mass. 348,52 N.E. 385
• Parties: O'BRIEN et al. v. CITY OF WORCESTER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

172 Mass. 348

52 N.E. 385

O'BRIEN et al. v. CITY OF WORCESTER.

Supreme Judicial Court of Massachusetts, Worcester.

January 6, 1899

COUNSEL

Wood & Wood, for plaintiffs.

A.P Rugg, City Sol., for defendant.

OPINION

MORTON J.

The defendant was under no legal obligation to the plaintiffs to build or maintain a sewer in Bradley street. It had a right to discontinue the old sewer, and to build a new one, and it was not required to connect the premises of the plaintiffs with the new sewer. Under the regulations of the board of health, which are said in the defendant's exceptions to have been duly adopted in accordance with authority conferred on the defendant by law, it belonged to the plaintiffs to do that. But in discontinuing the old sewer the defendant was bound to proceed with due regard to the fact that the premises of the plaintiffs were connected with and drained into it; and, if it failed to do so, it was liable to the plaintiffs for the damages resulting to them therefrom unless there was contributory negligence on their part. It is well settled in this commonwealth that towns and cities are liable for damages caused by their negligence, or that of their servants or agents, in constructing or maintaining sewers, though not for any damages resulting from any defect in the plan or system on which the sewers are built. Child v. City of Boston, 4 Allen, 41; Emery v City of Lowell, 104 Mass. 13; Merrifield v. City of Worcester, 110 Mass. 221; Bates v. Inhabitants of Westborough, 151 Mass. 174, 23 N.E. 1070; Allen v City of Boston, 159 Mass. 324, 34 N.E. 519. There was testimony tending to show that "some time after the new sewer was constructed the city walled up the old sewer without the knowledge of the plaintiffs, and without notice to them," and that the effect of this was to cause the water and sewage to set back into the cellar of the plaintiffs, and lead to the damages and injuries complained of. The city had no right to do this without taking reasonable precautions to see that the plaintiffs were not injured thereby. The city contends that the plaintiffs knew, or ought to have known, that a new sewer was being constructed, and that they were negligent in not connecting their premises with it. These were questions of fact for the jury. If the plaintiffs knew, or by the exercise of reasonable care ought to have known, that a new sewer was being built, and that the old sewer was walled up, and negligently omitted to connect their premises with the new sewer, or failed to take such measures of prevention and precaution as ordinary prudence would have required, they cannot recover for any damages to which such negligence contributed. The defendant further contends that the sewer was walled up by its employés without its authority. But each bill of exceptions states that the sewer was walled up by the city. The defendant also insists that the plaintiffs violated the rules of the board of health in not entering the new sewer, and for that reason...