Igo v. City of Cambridge
| Decision Date | 18 May 1911 |
| Citation | 208 Mass. 571,95 N.E. 557 |
| Parties | IGO SAME v. CITY OF CAMBRIDGE. SAME v. L. D. WILLCUT SONS CO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Henry R. Skinner and Samuel A. Fuller, for plaintiff.
Norman F. Hesseltine and Dickson & Knowles, for defendant L. D Willcut Sons Co.
James F. Aylward, for defendant City of Cambridge.
If it became necessary for the water department of the defendant city either to lay or to repair a water pipe in the public way over which the plaintiff was driving when injured, the jury could find that to open a trench of the dimensions stated, without taking any precautions to warn travelers of the danger, rendered the street defective and unsafe. Norwood v. Somerville, 159 Mass. 105, 33 N.E. 1108; Torphy v. Fall River, 188 Mass. 313, 74 N.E. 465; Rev. Laws, c. 51, § 1.
To maintain the action, the plaintiff under Rev. Laws, c. 51, § 18, must prove that the defect was the sole cause of his injuries. The city had authorized the defendant company to erect a temporary engine house on a portion of the street nearly opposite the excavation, which narrowed the roadway and as the plaintiff's team was passing the engineer started the engine. The escaping steam, apparently discharged into the street, so frightened the horses that they began to run, and while uncontrollable the wagon plunged into the trench, when the plaintiff was thrown from his seat to the ground. If the loss of control could have been found to have been only momentary, and instantly would have been regained if the wagon had not come in contact with the defect, the plaintiff would have been entitled to recover, as the city does not contend that he was careless, or that it did not have notice of the defect. Babson v. Rockport, 101 Mass. 93. But it having been undisputed that the horses were beyond his control when the accident happened, and but for their fright the wagon would not have fallen into the trench the verdict for this defendant was rightly ordered. Titus v. Northbridge, 97 Mass. 258, 93 Am. Dec. 91; Horton v. Taunton, 97 Mass. 266; Fogg v. nahant, 98 Mass. 578; Id., 106 Mass. 278; Lynn Gas & Electric Light Co. v. Meriden Ins. Co., 158 Mass. 570, 586, 33 N.E. 690, 20 L. R. A. 297, 35 Am. St. Rep. 540.
The defendant company, outside of the portion occupied by its engine house under the permit, had no exclusive use of the street, which had not been closed to public travel. If permitted for its own convenience and benefit to maintain and operate the engine, yet it knew, or could be found to have known, that the street was being concurrently used by the public. It is common knowledge that horses are likely to become restive, and perhaps unmanageable from fright, caused by the hissing sound of emitted steam, and...
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