Kelleher v. City of Newburyport 

• Decision Date: 28 June 1917
• Citation: 227 Mass. 462,116 N.E. 806
• Parties: KELLEHER v. CITY OF NEWBURYPORT (two cases).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

227 Mass. 462

116 N.E. 806

KELLEHER

v.CITY OF NEWBURYPORT (two cases).

Supreme Judicial Court of Massachusetts, Essex.

June 28, 1917.

Exceptions from Superior Court, Essex County; Wm. F. Dana, Judge.

Two actions by Ellen Kelleher, administratrix, against the City of Newburyport. Verdicts for plaintiff, and defendant excepts. Exceptions overruled.Robert E. Burke and Edward E. Crawshaw, both of Newburyport, for plaintiff.

Horace I. Bartlett and Oscar H. Nelson, both of Newburyport, for defendant.

RUGG, C. J.

These two actions are brought to recover for the conscious suffering and death of the plaintiff's intestate, hereafter termed the plaintiff, alleged to have been caused by a defective condition of a highway. There was evidence tending to show that the accident occurred in this way: The plaintiff, a milkman, was watering his horse at a fountain in the street between 8 and 9 o'clock of a misty morning, when an automobile carefully driven came upon the street and, by reason of the extremely slippery condition of its surface due to oiling on the precedingafternoon by those in charge of the defendant's streets, began to skid, could not be controlled, and collided with the plaintiff's milk wagon, whereby the plaintiff was injured and subsequently died.

[1] 1. There was evidence that the defendant failed in the performance of its statutory duty to maintain the way reasonably safe for travel, and permitted to exist a defect consisting of extraordinary slipperiness in the surface of the street. Mere smoothness and slipperiness of a sidewalk may be a defect. Cromarty v. Boston, 127 Mass. 329, 34 Am. Rep. 381;Moynihan v. Holyoke, 193 Mass. 26, 78 N. E. 742. Oil spread upon the surface of the street, thus rendering it unreasonably slippery, is in no wise distinguishable, so far as concerns the legal principles involved, from the Hyatt lights in issue in these cases. Zegeer v. Barrett Mfg. Co., 226 Mass. 146, 115 N. E. 291.

2. Cities and towns are not required by the law to make special provisions in order to keep all their public ways at all times in condition for the safe passage of automobiles, bicycles and other mechanisms for travel newly devised and unthought of at the time when the statute imposing the general duty as to repairs of ways and liability for defects therein was enacted. But they are obliged to keep their ways reasonably safe and convenient for travel generally, having regard to all the circumstances. Automobiles are recognized by the law as a legal method of travel. Elaborate statutory provisions are made for their registration, for the licensing of those who operate them, and for their management upon public ways. It is common knowledge that at present in this commonwealth a vastly larger number of people travel upon the highways in automobiles than in horse-drawn vehicles. The care as to the repair of ways cast upon municipalities by the statutes has reference to all kinds of legitimate travel, including that rightly undertaken in automobiles. Although special provisions for their safety are not demanded, their presence cannot be ignored. The subject is considered fully in Doherty v. Ayer, 197 Mass. 241, 83 N. E. 677,14 L. R. A. (N. S.) 816, 125 Am. St. Rep. 355, and need not here be discussed again.

[3] 3. There was ample evidence of the due care of the one driving the automobile which struck the plaintiff's wagon. The mere fact that it skidded does not show negligence. Williams v. Holbrook, 216 Mass. 239, 103 N. E. 633;Loftus v. Pelletier, 223 Mass. 63, 111 N. E. 712.

[4] 4. If the conduct of the driver of the automobile was cautious, then his intervention between the defect and the injury would not as matter of law break the direct...