Lucianelli v. City of Newton

• Court: Supreme Judicial Court of Massachusetts
• Citation: Lucianelli v. City of Newton, 288 Mass. 535 (Mass. 1934)
• Decision Date: 08 December 1934
• Parties: ARMORE LUCIANELLI, administrator, v. CITY OF NEWTON.

288 Mass. 535

ARMORE LUCIANELLI, administrator, v. CITY OF NEWTON.

Supreme Judicial Court of Massachusetts, Middlesex.

December 8, 1934

December 3, 4 1934.

Present: RUGG, C.

J., CROSBY, FIELD DONAHUE, & LUMMUS, JJ.

Way, Public: what constitutes.

At the trial of an action of tort against a city for personal injuries sustained by reason of a defect in an alleged public way, there was no evidence that the way ever was laid out or accepted as a public way.

There was evidence that the city acquired title by deed to the land in the way which was forty feet wide, wrought the middle portion for travel, with paved gutters on each side thereof, and laid sewer and water pipes therein; that the wrought portion had been used for public travel for many years; that the rest of the way was grass land; and that the place where the plaintiff was injured was in the grass land. There was no evidence that the city had maintained the grass land as a sidewalk or that the public had used it under a claim of right. A verdict for the defendant was ordered. Held, that the verdict properly was ordered because the evidence did not show that the city had any responsibility for the condition of that portion of the way where the plaintiff was injured.

TORT, originally by Gaetano Lucianelli and after his death prosecuted by the administrator of his estate. Writ dated January 30, 1928.

The action was tried in the Superior Court before Morton, J., who ordered a verdict for the defendant. The plaintiff alleged an exception. Material evidence is stated in the opinion.

H. Feldman, (E.

M. Dangel & L.

E. Sherry with him,) for the plaintiff.

E. O. Mullowney (J.

W. Bartlett with him,) for the defendant.

RUGG, C.J. This is an action of tort to recover damages sustained by the plaintiff's intestate by reason of a defective and dangerous condition in an alleged highway, called Manet Road in the defendant city. The sole question raised by these exception is whether the place where the plaintiff's intestate fell was within a public way.

The printed record is not clear as to the precise place where the injuries were received, except that it was not within the wrought part of Manet Road. There was no evidence to show that Manet Road was ever laid out as a public way and accepted as such. There was evidence tending to show that the defendant had acquired by deed title to the land known as Manet Road. This stretch of land according to one of the plans in evidence was about forty feet in width extending northerly from Commonwealth Avenue. According to the scale on that plan a space about twelve and one half feet in width not far from the middle of this strip was wrought...