Kelley v. City of Boston

• Decision Date: 03 January 1902
• Citation: 62 N.E. 259,180 Mass. 233
• Parties: KELLEY v. CITY OF BOSTON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

180 Mass. 233

62 N.E. 259

KELLEY v. CITY OF BOSTON.

Supreme Judicial Court of Massachusetts, Suffolk.

January 3, 1902

COUNSEL

Burns & Clarke, for plaintiff.

Phillip Nichols, for defendant.

OPINION

KNOWLTON J.

This action is brought under Pub. St. c. 52, for the failure of the city to keep its streets reasonably safe and convenient for travelers. The cover had been removed from the top of a catch-basin about 2 feet square, situated about 60 feet from the front entrance of the plaintiff's dwelling house, in the highway, close to the curbstone, at the outer edge of the sidewalk. In the middle of the afternoon of May 1st the plaintiff missed her boy, who was 3 years and 11 months old and went out to look for him. When she reached the street she heard some children cry out that there was a child in the sewer. She went to where they were standing looking down into the catch-basin from which the cover had been removed. She looked down, and recognized her own child in the water. With the assistance of another woman, who took hold of one of her hands, she got down into the catch-basin, and rescued the child, who was taken out unconscious, and was almost drowned. There was dirty water and sewage about three feet in depth in the catch-basin, and she was in it to her waist while rescuing her boy. As a consequence of the exposure she contracted rheumatic fever, and she now seeks to recover the damages which were thus caused.

The liability of the city under the statute which the plaintiff invokes is only to travelers. If we assume that the plaintiff was a traveler while looking for her child and while walking to the catch-basin to see what was the condition there, she voluntarily gave up her position as a traveler when she abandoned the use of the street for travel, and passed from the surface of it, which alone was fitted and intended for travel, and descended into the catch-basin below. Laudable as was her motive, she ceased to be a traveler, and put herself in another relation to the defendant, in reference to which the law imposes no liability upon cities and towns. The case in this aspect of it, is similar to Harwood v Inhabitants of Oakham, 152 Mass. 421, 25 N.E. 625, and the principles stated in that case are applicable to this.

The defense may be maintained on another ground. The only defect in the street was the absence of the cover of the catch-basin from its place. But that defect was not...