Hurlburt v. Town of Great Barrington

• Decision Date: 08 July 1938
• Citation: 300 Mass. 524,16 N.E.2d 71
• Parties: HURLBURT v. TOWN OF GREAT BARRINGTON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

300 Mass. 524

16 N.E.2d 71

HURLBURT

v.TOWN OF GREAT BARRINGTON.

Supreme Judicial Court of Massachusetts, Berkshire.

July 8, 1938.

Action of tort by Jennie E. Hurlburt against Town of Great Barrington for injuries sustained by reason of a defective sidewalk. From an order for judgment for the defendant, plaintiff appeals.

Affirmed.Appeal from Superior Court, Berkshire County; Broadhurst, judge.

F. H. Wright, of Great Barrington, for plaintiff.

F. J. Brothers, of Great Barrington, for defendant.

DONAHUE, Justice.

The plaintiff, while a traveller on Main Street, a public way in the town of Great Barrington, was injured by reason of a defect in the sidewalk. She has brought this action to recover from the town damages for her injuries. It was submitted to a judge of the Superior Court on a case stated. The facts, to which the parties therein agreed, established liability of the defendant to the plaintiff if it was the duty of the town to keep in repair the sidewalk in question. It was agreed that the question to be determined was: ‘Is the Town of Great Barrington under the duty of keeping said sidewalk in repair?’

The judge in the Superior Court, on the facts set out in the case stated, ruled that it was not the duty of the town to keep in repair the sidewalk on which the plaintiff was injured. He found, and ordered judgment, for the defendant. The plaintiff has appealed.

The following facts are recited in the case stated: There is in the defendant town a district, known as the Great Barrington Fire District, created by St.1854, c. 350, which includes in its limits the place where the plaintiff was injured. Main Street in Great Barrington, in which was situated the sidewalk which caused injury to the plaintiff, was duly laid out as a public way under statutory authority at a time before the creation of the Great Barrington Fire District. St.1886, c. 279, which was accepted by the legal voters of the Great Barrington Fire District, gave to commissioners elected as provided in the act certain authority and powers with relation to sidewalks in the district. ‘The Great Barrington Fire District has functioned under the said Act since 1886, among other things constructing and repairing sidewalks within the limits of the fire district. Spec.St.1915, c. 135, created a Prudential Committee within said district and made certain changes as to the government thereof.’

The liability of a town to compensate a person injured by reason of a defect or want of repair in a highway is wholly statutory. Rouse v. Somerville, 130 Mass. 361;Sawyer v. Inhabitants of Northfield, 7 Cush. 490, 494; Section 1 of G.L.(Ter.Ed.) c. 84, which prescribes the standard of duty with respect to the state of repair of highways does not require a town to keep in the described state of repair every highway which may be situated within its boundaries. It is only ‘unless otherwise provided’ that such duty is put upon the town. The provisions of other sections of the statutes which fix responsibility for departure from the duty stated in section 1, and give rights of action for injury, damage or death resulting from defects or want of repair of highways are not limited in their application to municipalities. They all in terms apply to ‘the county, city, town or person by law obliged to repair’ highways which are defective or out of repair. G.L.(Ter.Ed.) c. 84, §§ 15, 18; c. 229, § 1. These statutes, with section 1 of G.L.(Ter.Ed.) c. 84 dealing with the same subject, must be construed in reference to each other. Gregory v. Inhabitants of Adams, 14 Gray 242, 246. So construed the statutes manifest the intention that a town is not to be held liable if by law the obligation to repair a particular highway, at a point where a defect or want of repair causes injury, damage or death, rests upon some one other than the town. Wilson v. Boston, 117 Mass. 509, 512;Cammett v. Haverhill, 197 Mass. 76, 78, 83 N.E. 331, and cases cited. The word ‘person’ in the phrase of the statute, ‘or person by law obliged to repair the same’, includes a corporation. Dickie v. Boston & Albany Railroad Co., 131 Mass. 516;Conary v. Boston & Maine Railroad, 252 Mass. 397, 147 N.E. 883;Mack v. Boston & Albany Railroad Co., 164 Mass. 393, 41 N.E. 653. It also includes a quasi corporation performing municipal functions such as the Great Barrington Fire District. See Prout v. Pittsfield Fire District, 154 Mass. 450, 28 N.E. 679;President & Trustees of Williams College v. Inhabitants of Williamstown, 219 Mass. 46, 106 N.E. 687;Costello v. Inhabitants of North Easton Village District, 205 Mass. 54, 91 N.E. 219;Seaver v. Inhabitants of Onset Fire District, 282 Mass. 209, 184 N.E. 668.

The decisive question here is whether the Great Barrington Fire District was by law obliged to repair the defective sidewalk where the plaintiff received injury. If the fire district was thus obligated by law there was no such obligation on the town. If however, the fire district was not so obligated, then under the statutes above referred to the obligation to repair the sidewalk rested on the defendant town and it is liable to the plaintiff.

The Great Barrington Fire District, originally created for fire protection of a portion of the town within its limits (St.1854, c. 350; St.1839, c. 138; St.1844, c. 152) was, by St.1868, c. 300, authorized to take or purchase land and water rights and to conduct and maintain a water system. Authority and powers with respect to sidewalks and sewers were given to the district by St.1886, c. 279, which was accepted by the legal voters of the district. The statute in its original form provided that the legal voters of the district ‘shall * * * elect * * * a board of three commissioners * * * of sidewalks, common sewers and main drains.’ The ‘powers, rights, duties and liabilities' of that board were, by Spec.St.1915, c. 135, conferred, with no change in powers or authority on a prudential committee.

Section 4 of St.1886, c. 279, provides: ‘It shall be the duty of said board, under the supervision and direction of said district, to construct, reconstruct, repair, maintain, and have charge of all main drains, common sewers, sidewalks and crosswalks in said fire district, and of all matters pertaining thereto as herein provided * * *.’ By section 5 it is provided: ‘Said board shall have authority to determine the grade, width and material * * * of all sidewalks on the public streets and highways of said district; and to construct, reconstructand repair such sidewalks in accordance with such determination. * * *’ The same section states that ‘Upon the completion of any sidewalk by said board, or the completion of the reconstruction or repair of any sidewalk, said board shall * * * determine and certify the whole expense of such making, reconstruction or repair * * * and shall assess one-half of the amount of the same upon all the lands especially benefited * * *.’ Under section 6 of the statute the board is given the power, ‘subject to the approval of said fire district,’ to determine when, in what manner and to what extent snow, ice and other obstructions shall be removed from sidewalks and crosswalks, and to fix by-laws and penalties regulating the same and prohibiting the deposit of ashes or other refuse material on the...