Haley v. City of Boston

• Decision Date: 02 April 1906
• Citation: 191 Mass. 291,77 N.E. 888
• Parties: HALEY v. CITY OF BOSTON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

191 Mass. 291

77 N.E. 888

HALEY v. CITY OF BOSTON.

Supreme Judicial Court of Massachusetts, Norfolk.

April 2, 1906

COUNSEL

Wm B. Sprout and Wm. R. Bigelow, for plaintiff.

Philip Nichols, for defendant.

SHELDON, J.

This is an action of tort brought to recover for personal injuries alleged to have been received by the plaintiff through the negligence of the driver of a cart belonging to the defendant. The driver drove the cart over the plaintiff's leg and broke it. There was evidence of the plaintiff's due care, and of the driver's negligence. The court ordered a verdict for the defendant, and the only question now raised is whether the defendant can be held to be responsible for the driver's negligence.

The driver was employed by the sanitary division of the street department of the city. This division removed garbage, house offal, and ashes from buildings in the city, without charge except that a fee of 10 cents a barrel, just enough to cover the expense of removing them, was charged for removing steam engine ashes. No charge was made for removing ashes from dwelling houses. From removing engine ashes the city received an income of something over $10,000 a year, and between $2,000 and $3,000 a year from the letting of space on scows of this division to various persons for the removal of offal and waste matter the sale of manure, and the rent of part of a wharf. The total expenses of this division above income were $623,000. The cart which ran over the plaintiff was loaded with ashes taken from dwelling houses, and there were no steam engine ashes upon it. The ordinances of the city of Boston put in evidence provide (chapter 1, § 8) that the various departments are 'placed under the charge of the officers or boards designated therefor, under the general supervision and control of the mayor,' and in chapter 38, § 1, that the street department, among other things, 'shall remove from yards and areas, when so placed as to be easily removed, all ashes accumulated from the burning of materials for heating buildings or for domestic purposes, and all noxious and refuse substances.' The ordinances also provide, in chapter 47, § 18, that 'no person, other than employés of the city engaged in public work, shall in any street carry house dirt, house offal, or other refuse matter, except in accordance with a permit from the board of health.'

The general rule is well settled in this commonwealth that a city or town which voluntarily undertakes work of a commercial character, from which it seeks to derive revenue or other special advantage, is liable like a private employer for the negligence of its servants or agents who are engaged therein. Duggan v. Peabody, 187 Mass. 349, 73 N.E. 206; Little v. Holyoke, 177 Mass. 114, 58 N.E. 170, 52 L. R. A. 417; D'Amico v. Boston, 176 Mass. 599, 58 N.E. 158; Lynch v. Springfield, 174 Mass. 430, 54 N.E. 871. So, too, if it has chosen to take the work of repairing or constructing a street or bridge out of the charge of the officers designated by law, and itself to assume direct control of the work, it may be held liable for the negligence of the servants or agents whom it employs for that purpose. Butman v. Newton, 179 Mass. 1, 60 N.E. 401, 88 Am. St. Rep. 349; Collins v. Greenfield, 172 Mass. 78, 81, 51 N.E. 454; Doherty v. Braintree, 148 Mass. 495, 20 N.E. 106; Waldron v. Haverhill, 143 Mass. 582, 10 N.E. 481; Deane v. Randolph, 132 Mass. 475; Hawkes v. Charlemont, 107 Mass. 414. So it may be held for negligence in the construction of water works or the laying of water pipes. Lynch v. Springfield, 174 Mass. 430, 54 N.E. 871; Fox v. Chelsea, 171 Mass. 297, 50 N.E. 622; Stoddard v. Winchester, 157 Mass. 568, 32 N.E. 948; Perkins v. Lawrence, 136 Mass. 305; Hand v. Brookline, 126 Mass. 324. Like liability has been held to exist in the case of appliances and supplies used for the lighting of streets, on the ground that one of the purposes aimed at, at least incidently, is to facilitate the use of the public ways for which the city is responsible, and to guard against the liability that might exist for accidents caused by any defect therein. Dickinson v. Boston, 188 Mass. 596, 75 N.E. 68; Sullivan v. Holyoke, 135 Mass. 273. Many of these cases have been put on the ground that the enterprise engaged in was partly of a commercial character, from which revenue or other advantage was expected to be realized. And where this element exists, liability has been maintained although the work engaged in was only partly of the nature of a business enterprise, being incidental both to public and to commercial undertakings. Davies v. Boston [Suffolk, January 4, 1906 (Mass.) 76 N.E. 663], decided since this case was argued; Duggan v. Peabody, 187 Mass. 349, 73 N.E. 206; Collins v. Greenfield, 172 Mass. 78, 51 N.E. 454; Neff v. Wellesley, 148 Mass. 487, 20 N.E. 111, 2 L. R. A. 500; Oliver v. Worcester, 102 Mass. 489, 3 Am. Rep. 485. The liability for negligence in the contruction or maintainance of sewers comes under this doctrine. Manning v. Springfield, 184 Mass. 245, 68 N.E. 202; O'Brien v. Worcester, 172 Mass. 348, 52 N.E. 385. But these exceptions never have been held in this commonwealth to affect the general rule that a city or town is not to be held to any liability for the negligence of persons employed by it in work merely of a public character required or authorized to be done and undertaken without compensation in the performance of a public duty. Taggart v. Fall River, 170 Mass. 325, 49 N.E. 622; Kelley v. Boston, 186 Mass. 165, 71 N.E. 299, 66 L. R. A. 429; Tindley v. Salem, 137 Mass. 171, 50 Am. Rep. 289; Pratt v. Weymouth, 147 Mass. 245, 17 N.E. 538, 9 Am. St. Rep. 691; Hafford v. New Bedford, 16 Gray, 297. And this general principle of exemption from liability extends to negligence of persons employed in carrying out undertakings performed under authority of law in behalf merely of the public health, though of a character for which liability otherwise might be maintained. Harrington v. Worcester, 186 Mass. 594, 72 N.E. 326; Benton v. Trustees of City Hospital, 140 Mass. 13, 1 N.E. 836, 54 Am. Rep. 436.

It becomes material then to determine what is the character of this work of removing ashes from dwelling houses; and it seems to us to be work of a public nature. It is provided by statute that a town may contract for the disposal of its garbage, refuse, and offal. Rev. Laws, c. 25, § 14. It is not a strained construction to...