Hill v. Boston

CourtUnited States State Supreme Judicial Court of Massachusetts
Citation122 Mass. 344
PartiesCharles W. Hill v. City of Boston
Decision Date12 March 1877


Judgment for the defendant.

C. R Train, (S. F. Keyes with him,) for the plaintiff.

H. W Putnam, (J. P. Healy with him,) for the defendant.

Gray C. J. Endicott, J., absent.


Gray C. J.

This is an action of tort against the city of Boston. The plaintiff, who sues by his next friend, offered to prove at the trial that in May, 1874, he was of the age of eight years, and was a pupil attending a school in Boston, which was one of the public schools which the city was bound by law to keep and maintain; that this school was on the third floor of the building in which it was kept; that the staircase was winding, and the railing thereof so low as to be dangerous; that the city negligently constructed and maintained the building, and authorized the public schools to be kept therein; and that the plaintiff, while going to school, and being in the exercise of due care, fell over the railing of the second flight of stairs, and was seriously injured.

The plaintiff also offered to prove that the school committee of the city, for a long time before the accident, knew the building to be dangerous and unfit for the purposes of a public school, and had been notified by the teachers of the school of the dangerous condition, and had promised to repair the same, and had neglected to do so. But the school committee is not charged by law with any duty of erecting or constructing school-houses, but only with that of keeping them in good order when built, and with the general charge and management of the schools, and of procuring a suitable place for the schools where there is no school-house. The duty to provide and maintain school-houses, properly furnished, is imposed by general law upon all towns and cities in the Commonwealth. Gen. Sts. c. 3, § 7, cl. 17; c. 38, §§ 36, 40. Sts. 1821, c. 110, § 19; 1854, c. 448, § 56. The declaration does not proceed, and the learned counsel for the plaintiff does not rely, upon any negligence of the school committee, but upon the negligence of the city in improperly constructing the school-house; and the length of time that the condition of the staircase had existed, and been known to the school committee, is only material as bearing upon the question of negligence on the part of the city.

The question presented by the report is, whether, upon so much of the evidence offered as is competent, the plaintiff is entitled to recover; if he is, the case is to stand for trial; otherwise, judgment is to be entered for the defendant.

We had supposed it to be well settled in this Commonwealth that no private action, unless authorized by express statute, can be maintained against a city for the neglect of a public duty imposed upon it by law for the benefit of the public, and from the performance of which the corporation receives no profit or advantage. But, it having been suggested at the argument that the recent opinions of the Supreme Court of the United States tended to a different result, the respect due to that high court, even in matters in which we are not bound by its decisions, has led us to reexamine the foundations upon which our law rests, and, in stating our conclusion, to make fuller reference to the authorities than might under other circumstances have been thought expedient.

The question has most commonly arisen in actions for defects in highways and bridges, by reason of which persons passing over them have received injuries.

By the common law of England, the charge of repairing highways lay upon the inhabitants of the parish, of common right, and could rest upon other corporations or individuals only by tenure or prescription. Lord Hale, in Austin's case, 1 Ventr. 183, 189. Com. Dig. Chimin, A. 4. Bac. Ab. Highways, E. 13 Rep. (ed. 1826) 33, note B. Bridges in highways, if "within any city or town corporate," were to be repaired by the inhabitants of such city or town; if "without the city or town corporate," by the county; and no other corporation or private person was bound to repair a bridge, unless by tenure or prescription. For want of repair in a private bridge, the person entitled to a passage over it might have a remedy by writ de ponte reparando; but for want of repair in a public bridge, the remedy was by presentment or information at the suit of the King. "Where it cannot be known and proved what persons, lands, tenements and bodies politic" were bound to make or repair a public bridge, the St. of 22 H. VIII. c. 5, provided a more speedy remedy to compel the inhabitants of the city, town or county to repair, by application to four justices of the peace. 3 Sts. of the Realm, 322. 2 Inst. 696-703. Repair of Bridges, 13 Rep. 33. Regina v. Justices of St. Peter's , 2 Ld. Raym. 1249, 1251. Com. Dig. Chimin, B. 3. Bac. Ab. Bridges.

Although the English books contain numerous cases of indictments or informations for neglect to repair highways and bridges, no instance has been referred to, in the frequent discussions of the subject in England and in this country, in which an English court has sustained a private action against a public or municipal corporation or quasi corporation for such neglect, except under a statute expressly or by necessary implication giving such a remedy.

The leading case, as it has generally been considered, is in Brooke's Abridgment, where it is thus stated: "Common highway is out of repair, so that I mire my horse, I shall not have an action against those who ought to repair it, for it is popular, and shall be reformed by presentment. Quod nota per Heidon, etc. 5 E. IV. 3." Bro. Ab. Accion sur le Case, pl. 93. In the year book referred to, the case is stated a little more fully: "If there be a common way, and it is not repaired, so that I am damaged by the miring of my horse, I shall not have any action for that against those who ought to repair the way, but it is a popular action, in which case no individual shall have an action on the case, but it is an action by way of presentment. Quod nota per Heydon, &c." 5 E. IV. 2, pl. 24. Haydon, here mentioned, appears to have been counsel only, and never a judge. 4 Foss's Judges of England, 402, 431. And the case might, at first sight, be supposed to be but a statement of the general rule that a public nuisance can be prosecuted by indictment only, and not by private action, and it was so treated in some early books. Bro. Ab. Nusance, pl. 29. Williams's case, 5 Rep. 72 b, 73 a. Anon. Moore 180, pl. 321. But it has been uniformly understood in modern times as showing that it was because the highway ought to be repaired by the public, that the common law did not make an injury, arising from neglect to repair, a subject of private action, but only of indictment by the government. Lord Kenyon and Ashhurst, J., in Russell v. Men of Devon, 2 T. R. 667, 673

Alderson, B., in M'Kinnon v. Penson, 8 Exch. 319, 321, 323. Hannen, J., in Gibson v. Mayor &c. of Preston, L. R. 5 Q. B. 218, 222. Kent, C., in Bartlett v. Crozier, 17 Johns. 439, 454. Hornblower, C. J., in Freeholders of Sussex v. Strader, 3 Harrison 108, 121. Selden, J., in Weet v. Brockport, 16 N.Y. 161, 167, note.

In Thomas v. Sorrell, Vaugh. 330, 340, Chief Justice Vaughan, arguendo, said: "And note, if a man have particular damage by a foundrous way, he is generally without remedy, though the nuisance is to be punished by the King. The reason is, because a foundrous way, a decayed bridge, or the like, are commonly to be repaired by some township, vill, hamlet, or a county, who are not corporate, and therefore no action lies against them for a particular damage, but their neglects are to be presented, and they punished by fine to the King. But if a particular person or body corporate be to repair a certain highway, or portion of it, or a bridge, and a man is endamaged particularly by the foundrousness of the way, or decay of the bridge, he may have his action against the person or body corporate who ought to repair, for his damage, because he can bring his action against them; but where there is no person against whom to bring his action, it is as if a man be damaged by one that cannot be known."

This statement was wholly obiter dictum, and the latter part of it would seem to refer to persons or corporations bound to repair by tenure or prescription. The final clause, unless it refers to the words of the St. of H. VIII., (quoted above,) defining the cases in which a special remedy might be had to compel a bridge to be repaired, is hardly intelligible; for the inhabitants of a particular territory, who could be compelled to repair the way or bridge, or to pay a fine to the King, must be sufficiently known to be charged on execution in a private action. Lord Holt, upon an indictment against the inhabitants of a parish for not repairing a common way, said, "The matter is not at an end by the defendants being fined, but writs of distringas shall be awarded in infinitum, till we are certified that the way is repaired;" Regina v. Cluworth, 1 Salk. 359; S. C. 6 Mod. 163; Holt, 339; and again, upon an information against the inhabitants of a county for not obeying an order of sessions to repair a bridge, "If it be not obeyed, an attachment may go against the inhabitants of the whole county, and catch as many as one can of them." The Queen v. Wilts, 6 Mod. 191, 307; S. C. Holt, 339.

A municipal corporation might doubtless be bound by the terms and conditions of its charter, or by prescription, to repair even a place upon a private estate. For example, in an action on the case against the corporation of Lynn Regis, the declaration was for not repairing and cleansing a tide water creek, as from time immemorial the corporation had been used...

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