D'amico v. City of Boston

• Decision Date: 18 October 1900
• Citation: 176 Mass. 599,58 N.E. 158
• Parties: D'AMICO v. CITY OF BOSTON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

176 Mass. 599

58 N.E. 158

D'AMICO v. CITY OF BOSTON.

Supreme Judicial Court of Massachusetts, Middlesex.

October 18, 1900

COUNSEL

J. J Shaughnessy, for plaintiff.

Samuel M. Child, for defendant.

OPINION

LORING J.

We are of opinion that the ruling directing a verdict for the defendant was wrong. The city of Boston had taken, by right of eminent domain, a large tract of land in Southboro for the purpose of constructing on it a water basin in connection with its water supply. A portion of the highways which had been laid out through this tract of land before it was taken by the city was discontinued, and, among others, the way on which the plaintiff was driving when the accident occurred causing the injuries complained of in this action. The city had made a contract with the town of Southboro to do the work made necessary by the discontinuance of these ways, by the relocation of other ways in this tract, and by changing the grade of still other ways in it. The ways discontinued were marked blue on a plan referred to in this contract, those relocated were marked red, and those the grade of which was changed were marked yellow. In this contract was the following covenant of the city of Boston: 'Said city * * * shall secure to all persons desiring to use any of said parts shown in red, yellow, or blue a safe and convenient way of travel over or around each part from the time said city shall construct or commence work on the same until the completion of the substitute therefor in the manner aforesaid, and shall at all times during the progress of its work secure safe and convenient ways of travel between Southboro and the neighboring towns, and between the different parts of said town.' This contract was ratified and confirmed by St. 1894, c. 108. The plaintiff, with three others, was driving from Fayville to Marlboro on one of the ways which had been discontinued. It is stated in the bill of exceptions that this way, though discontinued, 'had been continually in use by the public.' 'There was no other road open for travel between Fayville and Marlboro at the time.' 'The road remained open the same as it was when the land was taken by the defendant, and no notice were posted, or anything done to indicate that the road was not to be used.' 'The road to be substituted for this road under the said contract with the town of Southboro was being constructed, but not completed, at the time of the accident. The defendant was engaged at this time in the construction of the new roads called for in the contract between the city of Boston and the town of Southboro.' There was evidence that the discontinued way over which the plaintiff was traveling was in a defective condition, and, if the defendant owed the plaintiff any duty in keeping it in a safe condition for travel, that it was negligent in allowing it to be in the condition in which it was at the time of the accident.

We are of opinion that the defendant had invited the plaintiff to use the way in question, and therefore owed him the duty of not exposing him to a dangerous condition, which reasonable care on its part would have prevented. Holmes v Drew, 151 Mass. 578, 25 N.E. 22...