Cammett v. City of Haverhill
| Decision Date | 01 January 1908 |
| Citation | 197 Mass. 76,83 N.E. 331 |
| Parties | CAMMETT v. CITY OF HAVERHILL. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Peters & Cole, for plaintiff.
Essex S. Abbott, for defendant.
The plaintiff was thrown from his wagon and injured while driving on a public street. There was evidence that he was in the exercise of due care. The first question in dispute is whether the condition of the street was such as to create a liability on the part of the city or the street railway company for an accident happening there. The street railway was constructed at this point with two tracks, laid with girder rails having a flange on the inside of the rail. Between the rails of the southerly track a grating was constructed, to carry off water into a catch-basin. The flange was cut off from the of the rails for a distance of two feet, to let the grating into the rail, and in part to drain the rail. As the plaintiff was driving diagonally across the track, the left forward wheel of his wagon passed along near the line of junction between the grating and the rail, and as the tire projected a little beyond the sides of the felloe of the wheel, it became caught under some part of the rail, at one end of the portion from which the flange had been cut off. The wheel was held there and the plaintiff was thrown out. It is difficult to understand, upon the evidence how the wheel could have become caught.
Inasmuch as cities and towns are liable for accidents upon highways only when negligent in regard to the condition of the way the mere fact that an accident happened, from a condition which reasonable men in general would not consider unsafe, is not enough to create a liability. A plaintiff must show, in order to recover, not that an accident has happened which no one would have anticipated, but that there were conditions, such that the authorities, in the exercise of proper care, ought to have realized that there was danger of an accident, and to have taken precautions to prevent it. The testimony tends to show that, if the grating had been in the position in which it was originally placed, such an accident could not have happened, and that it had settled a little, so as to be below the bottom of the rail. We are of opinion that it was a question for the jury whether the condition of the grating and the rail rendered the street manifestly unsafe.
It is contended by the defendant that it is not legally responsible for the condition of the street in this particular, and that the street railway company alone should be held accountable for the consequences. The statute which gives a right to recover for accidents of this kind limits it to cases in which the dangerous condition might have been 'remedied by reasonable care and diligence on the part of the county city, town or person, by law obliged to repair the same.' Rev. Laws, c. 51, § 18. 'Highways, town ways, causeways and bridges shall, unless otherwise provided, be kept in repair at the expense of the city or town in which they are situated,' etc. Rev. Laws, c. 51, § 1. When railroad corporations construct their tracks across highways and are required by law to keep that part of the way in repair, this provision leaves the city or town with no duty to keep that part of the way in repair, and of course the city or town is not liable for an accident that happens at such a place. Scanlan v. Boston, 140 Mass. 84, 2 N.E. 787; Rouse v. Somerville, 130 Mass. 361; Wilson v. Boston, 117 Mass. 509; White v. Quincy, 97 Mass. 430. But it has been held that the requirement of St....
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