Brookhouse v. Union R. Co.

• Citation: 132 Mass. 178
• Parties: John H. Brookhouse v. Union Railway Company
• Decision Date: 04 January 1882
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

132 Mass. 178

John H. Brookhouse v. Union Railway Company

Supreme Court of Massachusetts

January 4, 1882

Argued January 20, 1880

Middlesex. Tort for personal injuries. The declaration alleged that the defendant corporation, on May 14, 1879, owned or leased, and maintained and operated, a street railway and the tracks thereof, on and over an unpaved street, called Cambridge Street, in that part of Boston formerly Brighton; that the defendant was bound to keep in repair and free from any defect said tracks and the portion of said street occupied thereby, and eighteen inches on each side thereof; that the same were negligently suffered by the defendant to be defective and out of repair; and that the defendant, by its agents and servants, was careless, negligent, and guilty of misconduct in the construction, management and use of said tracks, whereby the plaintiff, on the day above named travelling in a carriage drawn by a horse, on said street and attempting to cross said tracks, and using due care, was violently thrown out of the carriage upon the ground, and received the injuries complained of. Writ dated January 22 1880, returnable to this court. The defendant filed a plea to the jurisdiction, alleging that the Superior Court, and not this court, had jurisdiction of the cause of action; and also filed an answer containing a general denial.

At the trial, before Endicott, J., the plaintiff offered to prove the facts alleged in the declaration. Upon this offer of proof, the defendant asked the judge to rule that this court had no jurisdiction of the action. The case was then taken from the jury by consent, and reported for the consideration of the full court. If the ruling should have been given, the plaintiff was to become nonsuit; otherwise, the case to stand for trial.

Action stand for trial.

T. H Sweetser & W. H. Martin, for the defendant.

H. W. Muzzey & J. W. Hammond, for the plaintiff.

OPINION

Endicott, J.

By the provisions of the Gen. Sts. c. 44, § 22, any person injured by a defect or want of repair in a highway may recover of the county, town, place or person by law obliged to repair the same, for any damage occasioned by the defect or want of repair, if such county, town, place or person had notice of the defect or want of repair, or if the same had existed for twenty-four hours previous to the occurrence of the injury or damage. Under this section it has been repeatedly held that, if a highway is not safe and convenient for travellers, and if a defect or want of repair therein had existed for twenty-four hours, or there was reasonable notice of it, the county, town, place or person by law required to keep the same in repair is liable to any person travelling thereon and injured thereby while in the exercise of due care, whether the defect arose from negligence, or from causes beyond the control of the party required to keep the highway in repair. George v. Haverhill, 110 Mass. 506.

By the St. of 1871, c. 381, § 21, it is provided that a street railway company shall keep in repair such portions of any paved highway as are occupied by its tracks, and when its tracks are laid in any highway not paved, then, in addition to the portion occupied by its tracks, it shall keep in repair eighteen inches on each side thereof, to the satisfaction of the superintendent of streets or the surveyors of highways; and shall be liable to any person who sustains injury by reason of the carelessness, neglect or misconduct of its servants in the construction, management and use of such tracks. See St. 1866, c. 286.

If the Legislature had merely provided in this statute that a street railway company should keep in repair certain portions of any highway occupied by its tracks, then such corporation would clearly come within...