Cushing v. City of Boston
| Decision Date | 09 February 1880 |
| Citation | 128 Mass. 330 |
| Parties | Nathaniel Cushing v. City of Boston |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Argued November 12, 1879; November 22, 1879
Suffolk. Tort for personal injuries caused by an alleged defect in Bartlett Street, in that part of Boston formerly Charlestown. Writ dated June 24, 1875. After the former decision, reported 124 Mass. 434, the case was tried in the Superior Court, without a jury, before Allen J., who found for the plaintiff in the sum of $ 2000; and the defendant alleged exceptions.
Exceptions sustained.
E. P Nettleton, for the defendant.
W Gaston & C. L. B. Whitney, (C. S. Lincoln with them,) for the plaintiff.
The facts now presented in this case, in regard to the position, construction and condition of the steps which constituted the alleged defect in the highway, do not differ from those stated in the former bills of exceptions, as reported in 122 Mass. 173, and 124 Mass. 434. On both occasions it was held that, under the St. of 1824, c. 16, § 3, these steps, which projected less than three feet into the highway, and were properly constructed and in good repair, could be lawfully maintained by the abutter, were not a nuisance, and did not constitute an illegal obstruction in the highway. Whether they rendered the highway unsafe for a traveller in the night-time, using due care, was entirely immaterial: they were authorized by law; the defendant could not remove them; and was under no obligation to place railings or other safeguards around them for the protection of travellers. It was also held, that it was within the power of the Legislature to make this provision in regard to the erection of door-steps within the limits of the highways in Charlestown, and we find nothing in the argument now addressed to us by the plaintiff which leads us to reconsider that question. 122 Mass. 173.
When the case was last before us, it appeared that, in 1869, the city of Charlestown passed an ordinance, which was a reenactment of a similar ordinance passed in 1849, prohibiting the erection and maintenance of door-steps in the highway without the permission of the mayor and aldermen; but, for reasons then stated, it could not properly form any part of the defendant's bill of exceptions. 124 Mass. 434. It is now before us, and the question is presented, whether, under the Gen. Sts. c. 19, § 13, (reenacting the St. of 1848, c. 278,) by which cities are authorized to make "such rules and regulations for the erection and maintenance of balustrades, or other projections upon the roofs or sides of buildings therein, as the safety of the public requires," Charlestown had the power to pass an ordinance prohibiting the maintenance of door-steps in the highway, which were lawfully there under the provisions of the St. of 1824, c. 16, § 3. In this connection, it is also to be noticed that the city of Charlestown, under its charter, was empowered to make "all such salutary and needful by-laws, as towns, by the laws of this Commonwealth, have power to make and establish." St. 1847, c. 29, § 20.
We are of opinion that these statutes did not authorize Charlestown to pass such an ordinance. The power conferred by the Gen Sts. c. 19, § 13, is limited to "balustrades or other projections upon the roofs or sides of buildings;" and undoubtedly, under this provision, they may be allowed or forbidden as each city may determine. The words "balustrades or other projections," as applied to the roof of a building, would seem to refer to those additions or structures upon the roof, which might under certain circumstances render a highway unsafe for travellers; but it is unnecessary in this case to determine precisely what projections on a roof are included in these words. As applied to the sides of a building, which is the only matter to be considered here, the...
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Clinkenbeard v. City of St. Joseph
...municipality. [Ring v. City of Cohoes, 77 N.Y. 83; Dubois v. City of Kingston, 102 N.Y. 219; Macomber v. Taunton, 100 Mass. 255; Cushing v. Boston, 128 Mass. 330; Arey v. City of Newton, 148 Mass. 598; City of Wellington v. Gregson, 31 Kan. 99.] It is a familiar rule that the question as to......
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Clinkenbeard v. City of St. Joseph
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