Graham v. City of Boston

• Decision Date: 25 February 1892
• Citation: 30 N.E. 170,156 Mass. 75
• Parties: GRAHAM et al. v. CITY OF BOSTON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

156 Mass. 75

30 N.E. 170

GRAHAM et al. v. CITY OF BOSTON.

Supreme Judicial Court of Massachusetts, Suffolk.

February 25, 1892

COUNSEL

George A.O. Ernst and Frank D. Allen, for plaintiffs.

Robert W. Nason and Thomas M. Babson, for defendant.

OPINION

ALLEN J.

The only question for our decision reported in these cases is whether there was evidence to justify the finding of the court that the plaintiffs, or any of them were travelers within the meaning of the statute respecting public ways. Pub.St. c. 52, § 1. It was held in Blodgett v. Boston, 8 Allen, 237, that a person who is using a highway simply for the purpose of play is not to be deemed a traveler. The court dwelt upon the fact that the plaintiff in that case was using the street for a purpose entirely foreign to any design or intent to pass or repass over it for the purpose of travel, and confined the expression of opinion to that precise case. In the present case the plaintiffs had been looking at the search-lights on a man-of-war ship from Warren bridge, and were on their way home in Charlestown, a considerable distance from the bridge, playing "tag" as they went. There was testimony tending to show that just before the time of the injuries they had stopped to get breath; that Graham walked away from the rest that he was not running at the time, nor was any one in pursuit of him, but that he was walking straight ahead, when he came in contact with the wire; and that, upon hearing his outcry or seeing him in trouble, Harkins went to his assistance, and the others went to help Graham and Harkins. There is not much difficulty in respect to the other plaintiffs besides Graham. The evidence tended to show that they were then engaged in trying to render assistance, and were not pursuing the game. As to Graham, the case is closer but there was evidence that he was actually on his way home, and that he was walking at the moment of receiving the injury. He was rightfully traveling home on the highway. He was not using the highway merely for the purpose of play, but also, and perhaps principally, for the purpose of getting home. In Tighe v. Lowell, 119 Mass. 472, this element was lacking. Amusing himself as he went, is not necessarily inconsistent with his being a traveler. Gulline v. Lowell, 144 Mass. 495, 11 N.E. 723; Bliss v. South Hadley, 145 Mass. 91, 13 N.E. 352; Hunt v. Salem, 121 Mass. 294. It seems to a majority of the court that...