Lyman v. County of Hampshire

• Decision Date: 02 November 1885
• Citation: Lyman v. County of Hampshire, 140 Mass. 311, 3 N. E. 211 (Mass. 1885)
• Parties: Rufus E. Lyman v. County of Hampshire
• Court: Supreme Judicial Court of Massachusetts

140 Mass. 311

3 N.E. 211

Rufus E. Lyman v. County of Hampshire

Supreme Judicial Court of Massachusetts

November 2, 1885

Argued September 22, 1885

Hampden.

Tort for personal injuries occasioned to the plaintiff, on November 8, 1881, by reason of a defect in the flooring of a bridge in Huntington, which was a county way. After the former decision, reported 138 Mass. 74, the case was tried in the Superior Court, before Barker, J. The jury returned a verdict for the plaintiff; and the defendant alleged exceptions, which appear in the opinion.

Exceptions overruled.

W. G Bassett, for the defendant.

E. H Lathrop, for the plaintiff.

Field C. Allen, & Gardner, JJ., absent. Morton, C. J.

OPINION

Morton C. J.

The general laws provide that highways, town ways, and bridges shall be kept in repair at the expense of the town, city, or place in which they are situated, when "other provision is not made therefor;" and that any person injured by a defect therein may recover of the county, town, place, or persons by law obliged to repair the same, such damages as he has sustained thereby to his person or property. Gen. Sts. c. 44, §§ 1, 22; Pub. Sts. c. 52, §§ 1, 18.

The St. 1794, c. 30, which has not been repealed, provides, in the first section, that the justices of the Court of General Sessions of the Peace shall order a bridge to be erected over the Westfield River, in the town of Norwich, in the county of Hampshire, "one half of which to be at the expense of said county, and the other half to be borne by the said town of Norwich."

The second section provides that the bridge "shall hereafter be maintained, repaired, and supported in manner as is hereinbefore directed," that is, one half at the expense of the county, and one half at the expense of the town. It thus appears that "other provision" is made for the repair of this bridge than the general obligation imposed upon the town in which it is situated. The stastute does not distinctly say that the bridge shall be kept in repair by the county and town, but it uses in substance the same language used in the first section of the General Statutes above quoted. That section provides that ways and bridges "shall be kept in repair at the expense of the town, city, or place, in which they are situated;" and this has always been held to import that the repairs are to be made by such city, town, or place.

The intention of the Legislature was to impose the duty of keeping the bridge in repair jointly upon the county and town and both are liable for damages occasioned by a want of repair, because both are the parties "by law obliged to repair the same." The fact that the officers of the town of Huntington, in which the bridge is situated and which is the successor of the town of Norwich mentioned in the act, have always made the necessary repairs of the bridge, receiving one half of the expense thereof from the county, does not relieve the county from liability; in so doing, they acted as the agents of both parties obliged by law to make the repairs. The same construction was given to a statute similar to the one before us, in the case of Malden & Melrose...