D'Urso v. Town of Methuen
| Decision Date | 06 November 1958 |
| Citation | 338 Mass. 73,153 N.E.2d 655 |
| Parties | Alfred J. D'URSO v. TOWN OF METHUEN. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Anthony J. Randazzo, Lawrence, for plaintiff.
Matthew A. Cregg, Lawrence, for defendant.
Before WILKINS, C. J., and RONAN, SPALDING, COUNIHAN and CUTTER, JJ.
The plaintiff had verdicts for personal injury and property damage to his automobile when he ran into a trench, excavated by the water department of the defendant town upon a public way, about six o'clock on the afternoon of June 1, 1954, during a rain storm. The plaintiff was traveling north along the public way which was about 35 feet wide. For the last minutes during his approach to the trench another automobile was running abreast on the left of the plaintiff, until it passed in front of his automobile and turned to its right. The plaintiff then turned to his left, applied his brakes, and skidded into the trench, which he did not see until he was within 15 feet of it.
The excavation was 7 feet long and 30 inches wide. It was located 10 1/2 feet from the curbstone on the easterly or right hand side of the street where both automobiles were travelling shortly before the accident. The trench was guarded by three horses and twelve lanterns which were lighted. A person could have a clear view of the lanterns and the trench 1500 feet as he approached, although there is a bend in the road where the trench was located. The plaintiff did not see the excavation until he was 15 feet away. He attempted to pass the other automobile and was suddenly confronted by the trench which was then 15 feet ahead. The case is here upon the defendant's exception to the denial of its motion to direct a verdict for it.
The principal contention of the defendant is that the defendant is not liable except for a defect in a highway under G.L. c. 84, § 15, and that the plaintiff cannot recover unless the negligence of the town was the sole cause of his injury. Here the defendant says that if the negligence of the plaintiff or the operator of the other automobile or both was a contributing cause of the accident there could be no recovery under § 15. Igo v. City of Cambridge, 208 Mass. 571, 576, 95 N.E. 557, and case cited. The short answer to that contention is that the plaintiff was not confined to the statutory remedy which he had for a defect in the highway. Here the defendant town was engaged in a commercial undertaking rather than in a governmental capacity. Hand v. Inhabitants of Brookline, 126 Mass. 324; Sullivan v. Inhabitants of Town of Saugus, 305 Mass. 127, 25 N.E.2d 185; Harvard Furniture Co.,...
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Whitney v. City of Worcester
...town because of the fortuitous circumstance that the injury was caused by the activity of water department employees, D'Urso v. Methuen, 338 Mass. 73, 153 N.E.2d 655 (1958), rather than by fire department employees, Pettingell v. Chelsea, 161 Mass. 368, 37 N.E. 380 (1894).10 The inquiry int......
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Morash & Sons, Inc. v. Com.
...or town because of the fortuitous circumstance that the injury was caused by the activity of water department employees (D'Urso v. Methuen, 338 Mass. 73, 153 N.E.2d 655), rather than by fire department employees. Pettingell v. Chelsea, 161 Mass. 368, 37 N.E. In other cases a number of fine ......
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