Dickinson v. City of Boston

• Decision Date: 07 September 1905
• Parties: DICKINSON v. CITY OF BOSTON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

188 Mass. 595

75 N.E. 68

DICKINSON v. CITY OF BOSTON.

Supreme Judicial Court of Massachusetts, Suffolk.

September 7, 1905

COUNSEL

Chas W. Bartlett, Elbridge R. Anderson, and Arthur T. Smith, for plaintiff.

Sam'l M. Child, for defendant.

OPINION

BRALEY, J.

This is an action of tort to recover damages for injuries suffered by the plaintiff's intestate, which was caused by the fall of a defective lamp post owned by the defendant. Originally the deceased sought to sustain the suit under Rev. Laws, c 51, § 18, for injuries received as a traveler upon the highway. But, if the lamp post which fell stood in a public way, at the time of the accident she was on her own premises, and this statutory provision is inapplicable. Upon her death the plaintiff, as administratrix, being admitted to prosecute the suit, by an amendment duly allowed, declared in tort at common law for the alleged negligence of the defendant in not keeping and maintaining the lamp post in repair and allowing it to become defective and unsafe. At the trial in the superior court the plaintiff having obtained a verdict, the defendant brings the case here on exceptions to the exclusion and admission of certain evidence, and to a refusal to rule that upon all the evidence the action could not be maintained.

No argument has been advanced at the bar, nor is found in the defendant's brief that, if the action could be maintained, there was no evidence for the jury of its negligence, or that the deceased was not in the exercise of due care. This leaves for our consideration such matters only as were argued, or appear in the brief. Before taking up the principal question of liability the correctness of the rulings relating to evidence may be first considered. The cause of action was for the conscious suffering of the plaintiff's intestate from the time of the accident to her death, and evidence which had a tendency to prove that during this period she was suffering and finally died from an intercurrent disease was admissible. But the attempt of the defendant for this purpose to elicit on cross-examination from the mother of the deceased, who was a witness for the plaintiff, that other members of her family had died from pulmonary tuberculosis, and hence there was a presumption that her daughter also had died from this disease, well may have been deemed in the discretion of the presiding judge as too remote to be of any probative value, and its exclusion affords no just ground of exception. Jennings v. Rooney, 183 Mass. 577, 67 N.E. 665; Perkins v. Rice (Mass.) 72 N.E. 323. Furthermore, whatever benefit might have been derived from an answer to the question later was obtained by the defendant, when from one of its medical witnesses uncontroverted evidence of the presence of this disease in the family, and under such circumstances that, if infectious, she might have contracted it, was admitted. Morrison v. Lawrence, 186 Mass. 456, 72 N.E. 91.

Under an objection, but without an exception being taken at the time, though subsequently allowed as an exception of the defendant, a witness for the plaintiff, who had acted as counsel for her intestate, was permitted to give evidence of declarations she had made to him before the commencement of the action, whereby she fully narrated the circumstances under which the accident occurred. It is now urged that, as this conversation was held after a notice under Rev. Laws, c. 51, § 20, had been served upon the city, it is not brought within the provisions of St. 1898, c. 535, now Rev. Laws, c. 175, § 66, because serving such a notice is the bringing of an action within the meaning of the statute, after which such declarations are declared inadmissible. The presumption, however, is plain that it was the legislative purpose that this language should have its ordinary meaning as used in our laws, and the words 'commencement of the action' refer to the date when proceedings are instituted by a writ of other legal process issuing from the clerk's office. Ford v. Phillips, 1 Pick. 202; Gardner v. Webber, 17 Pick, 407, 411; Com. v. Casey, 12 Allen, 214, 217. While a preliminary finding of the good faith of the declarant by the court is required before such declarations can be received, this judicial action is to be inferred by the admission of the evidence itself, where the exceptions fail to state that the inquiry was not made. Dixon v. New England Railroad, 179 Mass. 242, 246, 60 N.E. 581. These declarations, therefore, were within the statute, and properly admitted in evidence. Brooks v. Holden, 175 Mass. 137, 55 N.E. 802.

By an ordinance duly enacted the city had established a lamp department, that included the lamps and other property used in its system of street lighting, the management of which was intrusted to an officer, therein designated as a 'superintendent of lamps.' The defendant now insists that he was a public officer, for whose negligence it was not responsible. It relies, in support of this position, upon St. 1825, p. 313, c. 3, permitting the city to set up and maintain lamps in its streets, so far as might be convenient and necessary for the purpose of lighting them, 'and to make all necessary contracts, rules, orders, and regulations respecting said lamps.' Under Prov. St. 1773-74, p. 301, c. 12, confirmed by St. 1796, c. 69, enacted when Boston was a town, and St. 1825, p. 313, c. 3, passed after it became a city, the defendant was authorized, but not required, to maintain lamps to light the streets, and to enact proper ordinances providing for the punishment of those 'breaking or otherwise damaging the same.' No general statutory duty is imposed upon cities and towns requiring them to light their streets for any purpose. See Pub. St. 1882, c. 203, § 76. But, when they are lighted at the expense of the municipality, authority to tax for such an expenditure must be given by statute. Minot v. West Roxbury, 112 Mass. 1, 17 Am. Rep. 52; Coolidge v. Brookline, 114 Mass. 592, 594. And it has been said that the probable reason for the passage of these special laws was the limitation on the taxing power of the defendant, as without them neither the town, nor the city, could have established and maintained lawfully a system of artificial lighting of its streets to be paid for out of the public revenue. Spaulding v. Peabody, 153 Mass. 129, 131, 132, 26 N.E. 421, 10 L....