Goodman v. Town of Provincetown

• Decision Date: 28 June 1933
• Citation: 186 N.E. 625,283 Mass. 457
• Parties: GOODMAN v. TOWN OF PROVINCETOWN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

283 Mass. 457

186 N.E. 625

GOODMAN

v.TOWN OF PROVINCETOWN.

Supreme Judicial Court of Massachusetts, Barnstable.

June 28, 1933.

Exceptions from Superior Court, Barnstable County; Joseph Walsh, Judge.

Action by Isaac Goodman against the Town of Provincetown. Defendant's motion for directed verdict was allowed, and plaintiff brings exceptions.

Exceptions overruled.

J. D. W. Bodfish, of Hyannis, and S. Markell and L. W. Black, both of Boston, for plaintiff.

T. Kelly, of Boston, for defendant.

PIERCE, Justice.

This is an action of tort to recover damages for personal injuries sustained by the plaintiff on certain premises owned and controlled by the defendant. The case was tried in the Superior Court to a jury. At the close of the evidence for the plaintiff the defendant rested and moved that a verdict be ordered in its favor. This motion was allowed and a verdict for the defendant was returned by the jury by order of the judge. To the allowance of this motion the plaintiff excepted. The case is before this court on exceptions relating to (1) ‘The exclusion of certain evidence offered by the plaintiff,’ and (2) ‘The allowance of the defendant's motion for a directed verdict.’ ‘The control of the premises by the defendant, town of Provincetown, was admitted by the defendant before any evidence was taken.’ The ‘bill of exceptions * * * contains all the evidence material to the issue raised.'

The evidence warranted the jury in finding the facts which follow: Early in 1928, the defendant commenced to consider the advisability of acquiring title to a parcel of land located in said town of Provincetown, between CommercialStreet and the water of Provincetown harbor, with the wharf adjacent thereto known as ‘Railroad Wharf,’ then owned by the New York, New Haven and Hartford Railroad Company, and the operation of said property as a wharf and public landing. A town meeting was duly called and held on February 14, 1928. At this meeting a committee of three was appointed with directions to confer with the officials of the New York, New Haven and Hartford Railroad Company and report their recommendations at a special town meeting to be called not later than March 20, 1928. The committee duly made a report in writing at a town meeting duly called and held March 19, 1928, and the town ‘Voted: That the report of the committee be accepted.’ At the same town meeting, under art. 2 of the warrant it was voted, ‘that the Selectmen be authorized to enter into negotiations with the New York, New Haven and Hartford Railroad Company to acquire the land between Commercial Street and the railroad wharf and also the wharf and that the Selectmen be instructed to procure any legislation that may be necessary to enable the town to hold and rent portion of said land and wharf and that the sum of $5,000.00 be raised and appropriated for the same.'

St. 1928, c. 253, § 1, reads: ‘The town of Provincetown is hereby authorized to acquire by purchase or gift a parcel of land located in said town between Commercial street and the waters of Provincetown harbor, together with the wharf adjacent thereto known as Railroad wharf, now owned or leased by The New York, New Haven and Hartford Railroad Company, and said town may maintain and operate said property as a wharf and public landing;’ section 3 provided for a submission of the act to the voters of Provincetown, and the manner and limitation of such submission. The act was accepted by the town at a town meeting duly called on May 21, 1928. The town acquired title to said property by deeds dated June 15, 1928, and June 29, 1928, respectively.

The premises acquired by the town by these deeds are on the southeasterly side of Commercial Street. The wharf, constructed on piles, extends straight out from the parcel of land over the waters of Provincetown harbor. Going from Commercial Street onto the wharf toward the end there is a railroad track and a railroad trestle to the left. On the right there are a water pipe and the edge of the wharf, and beyond that some buildings, distant about eleven hundred feet from Commercial Street. The railroad trestle goes down to about twenty-five feet from the water end of the wharf. Heller's building is the first building on the right; there are two other buildings next to Heller's and the end of the wharf about one hundred and fifty feet from Heller's building is clear of buildings. The wharf is about twenty feet wide in front of Heller's building out to where the railroad ties begin. The planking of the wharf butts against the railroad ties, so that the railroad trestle and the wharf are really two separate structures. The sleepers or ties of the railroad are raised about three or four inches higher than the planking of the wharf, which stops at the end of the sleepers. There were holes between the railroad ties, but no holes in the planking. That condition existed when the railroad stopped...