Caissie v. City of Cambridge

• Decision Date: 05 December 1944
• Citation: 58 N.E.2d 169,317 Mass. 346
• Parties: CAISSIE v. CITY OF CAMBRIDGE (two cases).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

317 Mass. 346

58 N.E.2d 169

CAISSIE

v.CITY OF CAMBRIDGE (two cases).

Supreme Judicial Court of Massachusetts, Middlesex.

Dec. 5, 1944.

Exceptions from Superior Court, Middlesex County; Goldberg, Judge.

Two actions, the first by Irene Marie Caissie, and the second by George Caissie, against the City of Cambridge to recover for injuries sustained by Irene Marie Caissie while travelling along a public way in the defendant city. Finding for the defendant, and the plaintiffs bring exceptions and appeals.

Exceptions dismissed and judgment for defendant.

Before FIELD, C. J., and LUMMUS, DOLAN, RONAN, and WILKINS, JJ.

R. J. Thibodeau, of Boston, for plaintiffs.

J. A. Daly, City Sol., of Boston, for defendant.

RONAN, Justice.

The first action is brought by a minor to recover damages for personal injuries sustained at eight-fifteen o'clock on the evening of July 9, 1941, which travelling along a public way in the defendant city, when some children who were using a beam upon a wooden horse for a seesaw lost control of the beam, permitting its end to fall across the sidewalk and to strike and break the plaintiff's leg. The city was engaged in laying a sewer in the way, and at the end of the day's work had piled up the boards and beams which were used in the work at a place where, if they had been left undisturbed, they would not have injured the plaintiff. Many children lived in the vicinity and they made general use of this dead end street for a playground. No watchman had been furnished by the city to protect pedestrians travelling near the site of the work. Due notice of the time, place and cause of the plaintiff's injury was given to the city. The plaintiff in one count of her declaration alleged that there was a defect in the highway and in another count charged the city in effect with permitting a nuisance to exist on the way. The second action was brought by the minor's father for consequential damages. The cases were submitted to the judge upon a statement of agreed facts which in the main contained the facts already mentioned. The judge ‘found’ for the defendant. The cases are here upon appeals and exceptions.

As the same questions are raised by the appeals as by the exceptions, we shall consider the cases upon the appeals and dismiss the exceptions. Royal Paper Box Co. v. Munro & Church Co., 284 Mass. 446, 188 N.E. 223;Clement v. Selectmen of Westwood, 316 Mass. 481, 55 N.E.2d 692.

The statement of agreed facts contains all the material facts upon which the rights of the parties are to be determined in accordance with law. It thus constituted a case stated. McNulty v. Boston, 304 Mass. 305, 23 N.E.2d 896;Azevedo v. Mutual Life Ins. Co., 308 Mass. 216, 31 N.E.2d 559. It was the duty of the judge to order the judgment that was required by the application of the correct principles of law to the facts stated. The inferences drawn by the trial judge from the facts stated are not binding upon us, and questions of fact as well as questions of law are open for review upon these appeals. United States Fidelity & Guaranty Co. v. English Construction Co., 303 Mass. 105, 20 N.E.2d 939;Howell v. First of Boston International Corp., 309 Mass. 194, 34 N.E.2d 633;Hayes v. Lumbermens Mutual Casualty Co., 310 Mass. 81, 37 N.E.2d 121.

We shall refer to the minor as the plaintiff. She cannot recover on the court based upon a defect in the highway. The injury resulted from being struck by a beam which the children were using while at play. The active conduct of a person which is the direct and immediate cause of an injury to travellers upon the way is not a defect within the meaning of G.L.(Ter.Ed.) c. 84, § 15, for which a municipality may be held liable. Lyons v. Brookline, 119 Mass. 491.Pierce v. New Bedford, 129 Mass. 534, 37 Am.Rep. 387.Downey v. Boston, 187 Mass. 20, 67 N.E. 638. Even if we should assume in favor of the plaintiff that the presence of the seesaw constituted a defect, then she could not prevail because the unauthorized and wrongful act of the children in using the city's property was the sole cause, or at least a contributing cause, of her injury. Unless the defect is the sole cause of an injury there can be no recovery against a city. Kidder v. Dunstable, 7 Gray 104;Vinal v. Dorchester, 7 Gray 421;Sheppherd v. Chelsea, 4 Allen 113;Pratt v. Weymouth, 147 Mass. 245, 17 N.E. 538,9 Am.St.Rep. 691;Igo v. Cambridge, 208 Mass. 571, 95 N.E. 557;Conary v. Boston & Maine Railroad, 252 Mass. 397, 147 N.E. 883.

The plaintiff...