Gero v. Metropolitan Park Commissioners

• Decision Date: 03 March 1919
• Citation: 232 Mass. 389
• Parties: KATHERINE T. GERO v. METROPOLITAN PARK COMMISSIONERS
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

232 Mass. 389

KATHERINE T. GERO v. METROPOLITAN PARK COMMISSIONERS

Supreme Judicial Court of Massachusetts, Suffolk.

March 3, 1919

January 9 1919.

Present: RUGG, C.

J., BRALEY, CROSBY PIERCE, & CARROLL, JJ.

Revere Beach Reservation. Parks and Parkways.

The boulevard of the Revere Beach Reservation was constructed on land taken for park purposes by the metropolitan park commission under St. 1893, c.

407, St. 1894, c 483, and St. 1895, cc. 305, 450, and, although it was in the form of a boulevard and was spoken of as such, it never became a public way, and these statutes did not impose any liability on the metropolitan park commissioners for a defect in or want of repair of such boulevard.

In the case in which the decision above stated was made it was pointed out that in taking the land for the boulevard of the Revere Beach

Reservation and in constructing that boulevard the metropolitan park commission did not act under St. 1894, c. 288, which provides in Section

3 that, "The liability arising out of any defect or want of repair in any roadway or boulevard maintained by said metropolitan park commission under this act, and the rights and remedies thereto appertaining, shall be in all respects the same as those provided by law in relation to the repairs of public ways and bridges, in chapter fifty-two of the Public Statutes and any acts passed from time to time in addition thereto or amendment thereof. Actions seeking to enforce such rights and remedies shall be brought against the commissioners as such, but there shall never be any personal liability on the part of them or any of them to any person injured as aforesaid by reason of such defect or want of repair."

TORT against the metropolitan park commissioners for personal injuries sustained on September 1, at about half past eight o'clock in the evening, on the boulevard of the Revere Beach Reservation by reason of a defect consisting of a large hole into which the plaintiff stepped, causing her to trip and fall. Writ dated October 22, 1917.

The defendants demurred to the declaration as amended. The material allegations of the amended declaration and the grounds assigned for the demurrer are stated in the opinion.

The case was argued on the demurrer before Jenney, J., who made an order overruling the demurrer, and, at the request of the parties, reported the case for determination by this court, with a stipulation of the parties that, if the demurrer ought to have been sustained, judgment should be entered for the defendants; and that, if the order of the judge was correct, judgment should be entered for the plaintiff in the sum of $800 and costs. The judge stated that the report was made under the provisions of R.L.c. 173, Section 105, because he was of opinion that the correctness of his order overruling the demurrer ought to be determined before any further proceedings in the trial court, and because of the agreement of parties that such determination should finally dispose of the case.

The portion of St. 1894, c. 288, Section 3, referred to in the opinion is as follows: ". . . The liability arising out of any defect or want of repair in any roadway or boulevard maintained by said metropolitan park commission under this act, and the rights and remedies thereto appertaining, shall be in all respects the same as those provided by law in relation to the repairs of public ways and bridges, in chapter fifty-two of the Public Statutes and any acts passed from time to time in addition thereto or amendment thereof. Actions seeking to enforce such rights and remedies shall be brought against the commissioners as such, but there shall never be any personal liability on the part of them or any of them to any person injured as aforesaid by reason of such defect or want of repair. . . ."

J. J. Scott, for the plaintiff. A. E. Seagrave, Assistant Attorney General, for the defendants.

CARROLL, J. The plaintiff alleges that while travelling on the sidewalk of the boulevard of the Revere Beach Reservation, constructed and maintained by the metropolitan park commission in the city of Revere, she was injured "by reason of a defect consisting of a large hole, into which she stepped;" that "the land . . . on said boulevard was taken by the defendants, as such commission, for public purposes, which land consists of a part of said boulevard and contains the site or location where the plaintiff was hurt as aforesaid that this taking was by virtue of an instrument recorded with Suffolk Deeds, book 2304, page 261, dated September 4, 1895 a copy of which is hereto attached, marked `Taking;' . . . that on this boulevard, or to the east thereof, there ran the Boston, Revere Beach and Lynn Railroad, which was also taken by virtue of said acts and power,...