Mahoney v. City of Boston

• Decision Date: 22 June 1898
• Parties: MAHONEY v. CITY OF BOSTON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

171 Mass. 427

50 N.E. 939

MAHONEY v. CITY OF BOSTON.

Supreme Judicial Court of Massachusetts, Suffolk.

June 22, 1898

COUNSEL

E.O. Achorn, D.F. Yost, and W.B. Grant, for plaintiff.

T.M Babson and F.E. Hurd, for defendant.

OPINION

MORTON J.

The plaintiff was injured by the fall of a derrick while he was at work on a section of the subway in Boston. The management of the derrick was under the direction of one Daniels, a foreman, and there was evidence that his sole or principal duty was that of superintendence, that the fall of the derrick was caused by his negligence, and that the plaintiff was in the exercise of due care. The plaintiff was in the employ of the Boston Transit Commission, and he and the others who were at work on the section, and all the expenses of construction, were paid in bills and pay rolls which were approved by the commission out of the proceeds of 3 1/2 per cent. bonds issued by the city of Boston under section 37, c 548, St.1894. The commission was building this section under that statute, and with the approval of the railroad commissioners has leased the subway to the West End Street-Railway Company, for 20 years, to begin when determined by the transit commission, at a yearly sum of 4 7/8 per cent. on the actual net cost of the subway, payable to the city of Boston, and to be applied by it in accordance with section 38, c. 548, aforesaid. That section provides that all rents received for the use of the subway shall be used "first, to meet any deficiency in the sinking fund requirements for bonds issued under the act; second, to meet the interest on said bonds, and the surplus, if any, as a part of the general revenue of said city for the maintenance of its public parks." Inasmuch as the city of Boston is to pay all of the costs and expenses of such subways as the commission may construct, and of such lands and rights as it may take under the authority of the act, and is to receive all rents, percentages, or other annual compensation paid for the use of them, we assume, without deciding, that the subways and such lands and rights will belong to the city. But neither that fact nor the fact that some members of the commission are appointed by the mayor and confirmed by the aldermen will necessarily render the city liable. The question is whether the work is a public work, and the commissioners are public officers charged with the performance of public duties in carrying it out, or whether the work, though public, is partly commercial in its character, and for the benefit of the city of Boston, and in performing it the commissioners act as its servants or agents. It is only in the latter event that the city is liable for the negligence of the foreman. The case of Prince v. Crocker, 166 Mass. 347, 44 N.E. 446, would seem to go far towards determining that the work is a public work. Though the point was not directly adjudicated in that case, the decision proceeds on the assumption that the work was in its nature a public work. Independently, however, of that case, we think that the work must be regarded as a public work, the expense of which the legislature has imposed on the city of Boston, as it rightfully could do, and for the doing of which it has provided agents appointed in part by the governor and council, and in part by the mayor and aldermen of Boston. The object is to promote the convenience of the inhabitants of Boston...