Butterfield v. City of Boston

• Decision Date: 28 February 1889
• Citation: 20 N.E. 113,148 Mass. 544
• Parties: BUTTERFIELD v. CITY OF BOSTON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

148 Mass. 544

20 N.E. 113

BUTTERFIELD v. CITY OF BOSTON.

Supreme Judicial Court of Massachusetts, Middlesex.

February 28, 1889

COUNSEL

F.S. Hesseltine and W.H. Hart, for plaintiff.

A.J Bailey, for defendant.

OPINION

MORTON C.J.

This case was tried upon the second count in the declaration, and the only question before us is whether the defendant is liable by reason of a defect in a highway. The facts are not in dispute. Warren bridge is a part of a highway which the city of Boston is bound to keep in repair. St.1874, c. 259. The plaintiff was intending to drive across the bridge. When he reached it, the gate-man was in the act of closing the gate. Seeing the plaintiff, he opened the gate, and beckoned him on. The plaintiff drove on, and, when his horse had put his fore feet upon the draw, it was moved by the draw-tender, and the plaintiff and his horse and vehicle were thrown into the river. The gates provided by the city were suitable, and the gate-man and draw-tender were competent persons. To render the city liable, the plaintiff must prove that he received an injury through a defect or want of repair or of sufficient railing in the highway or bridge, which might have been remedied, or which injury might have been prevented, by reasonable care and diligence on the part of the city, and that the city had notice of the defect or might have had notice by the exercise of proper care and diligence on its part. Pub.St. 52, § 18. We are of opinion that the facts of this case do not bring it within the letter or the spirit of this statute. The injury to the plaintiff was caused by the momentary negligence of the gate-man or the draw-tender, for which they may be liable, but for which the city is not liable. Nowell v. Wright, 3 Allen, 166; McDougall v. Salem, 110 Mass. 21; French v Boston, 129 Mass. 592.

It seems to us a misuse of terms to say that the injury happened through a defect in the street, of which the city had notice and which it might have remedied by reasonable diligence. The draw-tender is required by law to open the draw for the passage of vessels. The law contemplates that it shall frequently be opened. The opened draw, though it made the street dangerous, was not a defect, under the statute. Nor can the city be held liable because at the moment when the plaintiff went upon the bridge the gate-man opened the gate. If this was negligence on his part, he may be liable. Nowell v....