Connolly v. City of Waltham

• Decision Date: 10 May 1892
• Parties: CONNOLLY v. CITY OF WALTHAM.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

156 Mass. 368

31 N.E. 302

CONNOLLY v. CITY OF WALTHAM.

Supreme Judicial Court of Massachusetts, Middlesex.

May 10, 1892

COUNSEL

B.B. Johnson and J.L. Harvey, for plaintiff.

C.M Ludden, for defendant.

OPINION

BARKER J.

The plaintiff was a laborer employed upon the city water works of Waltham, and had been so employed for about six weeks, when the side of a trench caved in upon him while he was at work. The trench was about 5 feet wide and 6 feet deep, and open for some 300 feet. It was in sandy ground, and the earth thrown out was piled upon the side which fell. The trench was not planked, and no material was provided for the purpose of preventing it from caving. The injury occurred on August 30 1888, and the action was under the employers' liability act of 1887, the declaration alleging negligence of the superintendent in failing to sheet and brace the trench, and in permitting earth to be piled upon the bank. The questions for decision are raised by exceptions to the refusal of rulings which the defendant requested.

1. It appears that the town of Waltham was authorized to supply pure water by the statute of 1872, c. 337, and that under this statute a board of water commissioners was provided for to execute, superintend, and direct the performance of the works, subject to the vote of the town. St.1872, c. 337, § 7. A similar board was provided for by the city charter of Waltham, and was required to annually appoint a superintendent, to be under their control and direction and removable by them. St.1884, c. 309, § 24. A city ordinance provides that the board shall have and exercise all the rights and powers granted to the water commissioners in St.1872, c. 337, with the general supervision and expenditure of the appropriations for constructing, extending, and maintaining the works, and shall make all necessary contracts for the supply of labor and materials, exercising these powers subject to the orders of the board of aldermen; and that the superintendent, under the direction of the board of water commissioners, shall have the general superintendence of the out-of-door work and property connected with the water works, the hiring and discharging of laborers, the purchasing of materials, and shall generally perform such services as the board shall direct. The original commissioners were authorized to establish prices or rents to be paid for the use of the water, which might be increased after three years; and the city ordinance provides that the clerk of the water board shall collect all bills for the use of water. The superintendent in charge of the work when the plaintiff was injured was the superintendent whose appointment was provided for in St.1884, c. 309, § 24, and whose duties were defined in the city ordinance above mentioned. The court refused to rule that the city was not responsible for a negligent act of this superintendent, and the defendant now argues that such a ruling should have been given, not upon the ground that he was a public officer and acting in that capacity, and not as the defendant's agent or servant, but for the reason that the superintendent was under the direction of the commissioners, and could not purchase or furnish anything except by their direction; and that, as neither the city nor the commissioners furnished him with materials for bracing the trench, or gave him authority to procure them, he had no right or power so to do, and no duty to do that which was beyond his legal right and power, so that he cannot personally be charged with negligence; and that,...