Doherty v. Town of Ayer
| Citation | 83 N.E. 677,197 Mass. 241 |
| Parties | DOHERTY v. TOWN OF AYER. |
| Decision Date | 24 February 1908 |
| Court | United States State Supreme Judicial Court of Massachusetts |
J. J. & Wm. A. Hogan, for plaintiff.
John M Maloney, for defendant.
This action was brought to recover for damage to the plaintiff's automobile, alleged to have been caused by a defect in a highway which the defendant was bound to keep in repair. The road at the place of the accident was being reconstructed by the Lowell & Fitchburg Street Railway Company, which was preparing to lay a track on a location partly within the highway on its southerly side and partly on private land outside of it. There was a fence on the north side of the road, but no fence or wall on the southerly side. The old traveled way, before the work of reconstruction began, was from 16 to 20 feet wide. Between the traveled way and the fence on the north side there was a grass-covered space between 3 and 4 feet wide, on the south side there was a grass-covered space between 3 and 4 feet wide, and then the ground sloped upward, and was covered with a growth of birches and other trees. In preparing the place for the railway the grade of the highway, and for a space from 20 to 30 feet south of it, was cut down a distance of between 24 and 42 inches, leaving a surface of sand 300 or 400 feet in length through the entire width of the road, and for a distance of 20 or 30 feet south of the road. The road was in constant use, and the workmen upon it had orders to assist heavy teams if necessary, and sometimes they did so. The road was always left level, with no holes.
The plaintiff was familiar with the road and knew that work was going on there. He went over it with his automobile, on his way from Lowell to Ayer, early in the afternoon. On his return in the evening his machine ran upon the sand about 20 feet and then stopped. The road was level, and the only imperfection in it was its sandy condition. He made two unsuccessful attempts to get the machine out of the sand, but the wheels had sunk to a depth of 8 to 10 inches. He then got a horse, and with the help of laborers who shoveled sand from in front of the wheels, and with the use of his engine, and the pulling of the horse and the men, he got the machine out of the sandy place. In doing this he broke the automobile. The evidence was conflicting as to whether the place of the accident was within the traveled part of the old highway or entirely outside of the location of the way. The jury in returning their verdict answered 'Yes' to the question, 'Was the place of the accident reasonably safe for the travel of carriages other than automobiles?' The judge instructed the jury that an automobile was a carriage within the meaning of Rev. Laws, c. 51,§ 1, and that it was the duty of the defendant, under that statute, to keep its roads reasonably safe and convenient for automobiles, so that they might be protected. To this instruction the defendant excepted.
The question presented by this exception has never been decided by this court. It was raised in Baker v. Fall River, 187 Mass. 53, 72 N.E. 336, but it was immaterial to the decision, and the court refrained from considering it. The opinion contains this language: 'Therefore we have no occasion to consider whether roads must be kept in such a state of repair and smoothness that an automobile can go over them with assured safety.' The dictum in Richardson v. Danvers, 176 Mass. 413-414, 57 N.E. 688, 50 L. R. A. 127, 79 Am. St. Rep. 320, referred to in the opinion in Baker v. Fall River, was made without any thought of such a question as is now before us. This appears from the earlier statement in the same case, which is made the foundation of the decision that a bicycle is not a carriage within the meaning of the statute. Referring to the statute, which was first enacted in 1786 (St. 1786, p. 247, c. 81, § 1) and re-enacted in Rev. St. 1836, c. 25, § 1, Gen. St. 1860, c. 44, § 1, and Pub. St. 1882, c. 52, § 1, Mr. Justice Lathrop said: 'Although, of course, it is not to be confined to the same kind of vehicles then in use, we are of opinion that it should be confined to vehicles ejusdem generis, and that it does not extend to bicycles.' It hardly can be contended that locomotive cars of many tons weight, propelled by a gasoline engine or a steam or electrical engine with complicated machinery, capable of developing 50 or 75 horse power, and sometimes even more, are vehicles ejusdem generis as the carriages known to the legislators of Massachusetts in 1786. It was shown in the opinion from which we have just quoted that, under many statutes, a bicycle is held to be a carriage. It is a vehicle that is used in carrying one or more persons. But it was also said that 'it is more properly a machine than a carriage.' This is equally true of an automobile. It is a carriage in a broad sense of the word. But its features as a piece of machinery are far more striking than those which it possesses as a carriage. It is commonly spoken of as a 'machine.' In the bill of exceptions before us the plaintiff's vehicle is repeatedly called a 'machine.' Cars on steam railroads in England are called 'carriages,' and some railroad cars are referred to in this country as 'coaches'; but these are not such carriages as were intended by the framers of this statute. When towns were first required by law to keep their highways and town ways 'reasonably safe and convenient for travelers, with their horses, teams and carriages at all seasons of the year,' there was no thought of putting upon them such a burden as would be imposed if they were compelled to keep all of these ways in such a condition that automobiles could pass over them safely and conveniently at all seasons. Horses, teams and carriages are grouped together in the statute, and the carriages referred to are those drawn by animal power.
There are many highways and town ways that run into remote places and are but little traveled. In some parts of the state that are very sparsely settled there are vast stretches of sandy surface, traversed by roads that are but little used, where the small wheels of a heavy automobile might sometimes encounter as great an obstacle to progress as the plaintiff's vehicle encountered on the smooth level sand at the place of this accident. To be obliged to harden all such roads would be a burden upon towns heavier than could be borne. There are steep mountain roads laid out for the use of but a small part of the public, where, in a heavy rain, water flows down with much force. This must be turned off from the traveled part of the road by high and sharp water bars. It would be unreasonable to require all such roads to be made convenient for travel with automobiles at all seasons. There are also roads that are frozen to a great depth in winter, which sometimes present a surface of very deep soft mud while the ground is thawing in the spring. No reasonable expenditure by towns would be enough to make all such roads convenient for the use of heavy automobiles, with their small wheels, at all seasons. ...
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