Howard v. City of Worcester

• Decision Date: 01 April 1891
• Citation: 153 Mass. 426,27 N.E. 11
• Parties: HOWARD v. CITY OF WORCESTER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

153 Mass. 426

27 N.E. 11

HOWARD v. CITY OF WORCESTER.

Supreme Judicial Court of Massachusetts, Worcester.

April 1, 1891

COUNSEL

E.A. Gaskill and Blackmer & Vaughan, for plaintiff.

E.P Goulding, for defendant.

OPINION

C ALLEN, J.

The city contends that, even assuming that Kenney was its servant in such a sense that ordinarily it might be responsible for his acts or negligence, it is nevertheless exempt from responsibility to the plaintiff in the present case by reason of the nature of the work which it was carrying on, namely the construction of a school-house for public use. It was held in the familiar case of Hill v. Boston, 122 Mass. 344, that a city is not responsible in damages to a child attending a public school in a school-house provided by the city, under the duty imposed upon it by general laws for an injury sustained by the child by reason of the unsafe condition of a staircase in the building. In Bigelow v Randolph, 14 Gray, 541, a similar doctrine was applied where a scholar received an injury from a dangerous excavation in the school-house yard. The doctrine was reiterated in Sullivan v. Boston, 126 Mass. 540. It has also been applied to other public grounds, like Boston Common. Steele v. Boston, 128 Mass. 583; Veale v. Boston, 135 Mass. 187; Clark v. Waltham, 128 Mass. 567; Oliver v. Worcester, 102 Mass. 489. On the same principle a city was declared to be exempt from responsibility for a personal injury received in consequence of the defective condition of a public hospital. Benton v. Boston City Hospital, 140 Mass. 13, 1 N.E. 836. In other states a similar rule of exemption has been adopted in reference to school-houses and other public buildings maintained solely for public use and service. Wixon v. Newport, 13 R.I. 454, (school-house;) Eastman v. Meredith 36 N.H. 284, (town-house;) Hamilton Co. v. Mighels, 7 Ohio St. 109, (court-house;) Freeholders v. Strader, 18 N.J.Law, 108, 121, (dictum of HORNBLOWER, C.J., as to court-houses and jails.) The principle on which this exemption from responsibility rests is that in the various instances referred to the building was erected, or the grounds were prepared, solely for the public use, and with a sole view to the general benefit, and under the requirement or authority of general laws. In such cases, in the absence of any statute which directly or by implication gives a private remedy, no action lies in favor of a person who has received an injury in consequence of a negligent or defective performance of the public service. The cases heretofore cited relate to injuries received after the completion of the work. It makes no difference, however, if the injury is caused by negligent act done in the direct performance of the service. Tindley v. Salem, 137 Mass. 171; Lincoln v. Boston, 148 Mass. 578, 20 N.E. 329; Fisher v. Boston, 104 Mass. 87; Hafford v. New Bedford, 16 Gray, 297. The plaintiff seeks to establish a distinction on the ground that her injury was received outside of the limits of...