Davies v. City of Boston

• Decision Date: 04 January 1906
• Citation: 190 Mass. 194,76 N.E. 663
• Parties: DAVIES v. CITY OF BOSTON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

190 Mass. 194

76 N.E. 663

DAVIES v. CITY OF BOSTON.

Supreme Judicial Court of Massachusetts, Suffolk.

January 4, 1906

COUNSEL

Stebbins, Storer & Burbank, for plaintiff.

Philip Nichols, for defendant.

OPINION

KNOWLTON C.J.

The plaintiff, while a passenger on a ferryboat used by the defendant to carry passengers from East Boston to Boston, was injured by the negligence of one of the defendant's servants. The only question raised by the bill of exceptions is whether the defendant is liable for such an injury. The defendant contends that its relation to the plaintiff was simply that of an agent of the public, performing strictly public duties, with no commercial element entering into the business in which it was engaged, whether the business is viewed in reference to the plaintiff who paid the fare for her passage, or in reference to other aspects of the case. The plaintiff contends that it was a common carrier of passengers for hire, and that whatever elements of public interest entered into the service which it was rendering, there was also a commercial element in it which made the defendant answerable upon its contracts with passengers, and liable for damages caused by the negligence of its servants.

Under St. 1869, p. 497, c. 155, the city of Boston purchased of the East Boston Ferry Company, its boats, franchises, and other property, and since the purchase it has maintained a ferry with established tolls, for the transportation of passengers. Under the franchise granted by the original act of incorporation, the East Boston Ferry Company was a common carrier of passengers. St. 1852, p. 172, c. 244, § 2. After the purchase the defendant succeeded to this franchise, and in maintaining and operating the ferry it became a common carrier. St. 1869, p. 497, c. 155, § 1. The terms of the authority to maintain the ferry, given by this section, are as follows: 'In such manner and upon such rates of ferriage as the board of aldermen of said city shall from time to time judge the best interests of said city to require, excepting only as hereinafter provided.' The later provisions of the chapter here referred to are three First, a provision authorizing the city to maintain the ferry free of tolls if it should think it for its best interests so to do; secondly, a provision permitting it to maintain the ferry under section 5, with greater accommodations and with toll for foot passengers at half the former rate, and with other rates so reduced that the receipts of the ferry annually should not exceed the cost of operating it; and, thirdly, under section 6, an authority to maintain it free from tolls for a term of not less than 10 years after the purchase, and then upon such rates of toll as should conform to the requirements ot section 5. See Attorney General v. Boston, 123 Mass. 460-465. The statute provided for an assessment of betterments upon estates specially benefited, if the city adopted either of these three schemes whereby there would be a reduction of tolls. The city did not think its best interests required the adoption of either of them, but proceeded under section 1, without a reduction of tolls for foot passengers for more than 17 years. Under this section there was no limitation upon the tolls that it might charge, the whole matter being left to the board of aldermen, to fix the rates as they deemed best. There was also a special provision in section 7, allowing the board of aldermen, even if one of the three schemes above mentioned was adopted, to collect such rates of ferriage as they should judge expedient for teams and vehicles passing over the ferry to or from any place beyond the limits of Boston.

In exercising its franchise under this statute the city has not only been acting in the public interest, but it has been engaged in a business into which a commercial element entered. It furnished the privileges of the ferry for pay to those who used it. As the enterprise was partly commercial in its character, for the purpose of furnishing conveniences to those who would pay for them the city may be held like any private individual or corporation engaged in a like enterprise. Oliver v. Worcester, 102 Mass. 489, 3 Am. Rep. 485; Worden v. New Bedford, 131 Mass. 23 41 Am. Rep. 185; Little v. Holyoke, 177 Mass. 114, 58 N.E. 170, 52 L. R. A. 417; Neff v. Wellesley, 148 Mass. 487, 20 N.E. 111, 2 L. R. A. 500. For many years the rate of toll for foot passengers was the same...