Butman v. City of Newton

• Decision Date: 22 May 1901
• Citation: 60 N.E. 401,179 Mass. 1
• Parties: BUTMAN v. CITY OF NEWTON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

179 Mass. 1

60 N.E. 401

BUTMAN v. CITY OF NEWTON.

Supreme Judicial Court of Massachusetts, Middlesex.

May 22, 1901

COUNSEL

Geo L. Mayberry, for plaintiff.

Winfield Sleeum, for defendant.

OPINION

LORING J.

In this case the plaintiff's horse was frightened by some person or persons dumping a load of stone upon the wooden platform of a stone crusher, 'the noise from which, together with escaping steam, frightened the plaintiff's horse, and he ran away,' and caused the injury sued for. The employés who dumped the stone, and who had charge of the steam engine by which the stone crusher was run, were acting under the superintendent of streets, and were engaged in constructing Commonwealth avenue.

1. The defendant's first contention is that the act complained of is that of a public officer, for which the city is not liable. It is established, on the one hand, that a town is not liable for injuries caused to a person by the negligence of those engaged in repairing a way within its boundaries, if the work is done by or under a surveyor of highways ( Walcott v. Inhabitants of Swampscott, 1 Allen, 101; Hennessey v. City of New Bedford, 153 Mass. 260, 26 N.E. 999), or by a road commissioner (McManus v Inhabitants of Weston, 164 Mass. 263, 41 N.E. 301); and on the other hand, it is also established that if a town, in place of leaving the repair of its ways to the surveyor of highways, or to road commissioners, who are the public officers designated by the statutes to see that the highways, are kept in a safe condition (Pub. St. c. 52, § 3; Nealley v. Bradford, 145 Mass. 561, 563, 568, 14 N.E. 652; Pratt v. Weymouth, 147 Mass. 245, 255, 17 N.E. 538; Blanchard v. Inhabitants of Ayer, 148 Mass. 174, 176, 19 N.E. 209), undertakes to make the repairs by its own agents, it is liable for injuries caused through their negligence ( Hawks v. Inhabitants of Charlemont, 107 Mass. 414; Deane v. Inhabitants of Randolph, 132 Mass. 475; Tindley v. City of Salem, 137 Mass. 171-173, 50 Am. Rep. 289; Pratt v. Weymouth, 147 Mass. 245, 254, 17 N.E. 538; Brookfield v. Reed, 152 Mass. 568, 26 N.E. 138; Collins v. Inhabitants of Greenfield, 172 Mass. 81, 51 N.E. 454). The foundation of the general rule is that the duty of repairing the public highways is the performance of a public duty, imposed upon all towns alike, from the performance of which a town derives no special advantage in its corporate capacity. The exemption of the town in those cases where it is exempt under the general rule does not rest upon the fact that the town has no control over the highway surveyor or the road commissioner. The rule applies in many cases where the town has full control over the officials in question. For example, it has been held to include the case of an injury caused by the negligence of firemen in hauling a hose reel to extinguish a fire, where the fire department in question was established by the town under a special act, in place of leaving the matter to fire wards, and where the statute gave to the engineer and other officers of the fire department of the town the authority and duties of fire wards. Hafford v. City of New Bedford, 16 Gray, 297; Fisher v. City of Boston, 104 Mass. 87, 6 Am. Rep. 196. And see Buttrick v. City of Lowell, 1 Allen, 172, 79 Am. Dec. 721; Howard v. City of Worcester, 153 Mass. 426, 27 N.E. 11; Sampson v. City of Boston, 161 Mass. 288, 37 N.E. 177; Pettingell v. City of Chelsea, 161 Mass. 368, 37 N.E. 380. The general rule, as we have said, includes all cases where the town is performing a public duty, imposed upon all towns alike, from the performance of which it derives no special advantage in its corporate capacity.

A town which undertakes to make repairs on ways within its limits, by its own agents, is an exception to the general rule. In that case it has a pecuniary interest in the matter by reason of its statutory liability for a defect in the way. This distinction is pointed out, and the whole subject is so exhaustively stated by C. Allen, J., in Tindley v. City of Salem, 137 Mass. 172, 173, 50 Am. Rep. 289, that it is not necessary to restate the reasons at length in this case. It may be added, however, to what was said there, that while a town has, by statute, a remedy over against the surveyor of highways, through whose fault or neglect the way came to be in a defective condition, in a case where it has been fined for allowing a way to be out of repair (Pub. St. c. 27, § 128), it has no remedy over to recover a judgment against it for injuries suffered by a traveler from a defect in the way caused by the negligence of the surveyor (White v. Inhabitants of Phillipston, 10 Metc. 108).

It appears from the report in the case at bar that Commonwealth avenue, including that part of it on which the plaintiff was driving when the accident complained of occurred, was laid out by the city of Newton. We assume, therefore, that it was a town way, and was laid out under section 24 of the charter of the defendant city. St. 1873, c. 326. The laying out of a public way is the performance of a public duty imposed upon all towns and cities alike, from the performance of which they derive no special advantage in their corporate capacity, and is not the institution by the city of work for its own particular use and benefit. The defendant city therefore, is not liable in this case, becaused it had directed work to be done for its benefit, in which case it might be, under some circumstances, liable or injury caused by negligence in carrying it into effect. The expense of constructing a town way is, by the provision of our laws, to be borne by the town in which it is laid out. Pub. St. c. 52, § 1; Id. c. 49, §§ 68, 75. The act of the defendant city in making due appropriations for the construction of the way did not make it liable for this accident. That act, also, is the performance of a public duty, within the rule. The making of public ways is not only committed to the surveyors of highways or road commissioners, as is the matter of repairing them, but both matters are covered by one and the same sections of the Public Statutes. See Pub. St. c. 52, §§ 3, 13. Where a city or town pursues the course thus provided for, it is not liable for injuries caused by the negligence of those engaged in constructing a way. Taggart v. City of Fall River, 170 Mass. 325, 49 N.E. 622. This rule was applied in Jensen v. City of Waltham, 166 Mass. 344, 44 N.E. 339, where a street was being constructed by a board of street commissioners, the existence of which was provided for in the charter of the defendant city (St. 1884, c. 309, § 23), and who were invested by an ordinance of the city with the duty of highway surveyors. See McCann v. City of Waltham, 163 Mass. 344, 345, 40 N.E. 20.

In the case at bar the city of Newton did not pursue the course set forth in the General Laws for making the highways within its limits, but, on the contrary, it provided by its ordinances that, 'under the direction of the joint standing committee on highways the superintendent of streets shall have * * * the making, widening, and altering of streets and ways.' Newton, Munic. Ord. 1894, c. 11, § 3. A 'joint standing committee' is a committee of the city council made up of the common council and the board of aldermen. See the charter of the...