Doherty v. Braintree

• Decision Date: 27 February 1889
• Citation: 20 N.E. 106,148 Mass. 495
• Parties: DOHERTY v. INHABITANTS OF BRAINTREE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

148 Mass. 495

20 N.E. 106

DOHERTY v. INHABITANTS OF BRAINTREE.

Supreme Judicial Court of Massachusetts, Norfolk.

February 27, 1889

COUNSEL

John L. Eldredge, for plaintiff.

E. Avery and A.E. Avery, for defendant.

OPINION

C. ALLEN, J.

It is a general rule in this commonwealth, though subject to some exceptions, that a private action will not lie against a town to recover damages sustained in consequence of the negligence of its agents in the performance of a duty which, under requirement or authority of law, the town has assumed, with a sole view to the general benefit, unless such action is given by statute. Hill v. Boston, 122 Mass. 344, 345, 351; Tindley v. Salem, 137 Mass. 171. See, also, Benton v. Hospital, 140 Mass. 13, 1 N.E. 836.

But the duty of building a road or bridge has not been deemed to fall within this general rule, and such liability has been held to exist where a town has voluntarily or compulsorily assumed the performance of such duty. Hawks v. Charlemont, 107 Mass. 414; Deane v. Randolph, 132 Mass. 475; Waldron v. Haverhill, 143 Mass. 582, 10 N.E. 481. We cannot distinguish the present case from Deane v. Randolph. The duty of rebuilding the bridge was put upon the town, which proceeded to do the work through agents whom it might direct and control, namely, the selectmen and the committee of citizens. The fact that the draw was required to be 36 feet wide, and the bridge was required to be built according to plans which must first be approved by the board of harbor and land commissioners, did not take from the town the control of the work in any such sense as to exonerate it from responsibility for negligence in the details of construction.

Exceptions sustained.