McCarthy v. City of Boston

• Decision Date: 20 June 1883
• Citation: 135 Mass. 197
• Parties: John McCarthy v. City of Boston
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

135 Mass. 197

John McCarthy v. City of Boston

Supreme Court of Massachusetts

June 20, 1883

Suffolk. Tort for personal injuries received by the plaintiff while in the employ of the defendant. Trial in the Superior Court, before Gardner, J., who reported the case for the determination of this court, in substance as follows:

The plaintiff offered evidence tending to show that he received injuries by falling from a tree, while engaged, under the direction of a foreman or assistant superintendent employed by the defendant, in cutting a branch from the tree; that the accident was occasioned by the gross carelessness of the defendant in neglecting to furnish him with proper implements, to employ proper foremen or fellow servants to direct him, and to give him suitable cautions and directions to enable him to do his work with safety to himself; and that the plaintiff was in the exercise of due care. The plaintiff also offered evidence tending to show that he was hired for the defendant by William Doogue, the defendant's superintendent of the Common and public grounds; that Doogue was appointed as such superintendent under ordinances or by-laws, one of which was as follows: "The superintendent of the Common and public grounds shall, under the direction and control of the city council or a joint committee thereof, have the care and superintendence of the Common, Public Garden, and all the public squares and enclosures belonging to the city, and also the trees in the streets of the city;" that the plaintiff was set to work by the superintendent under the immediate direction and control of a foreman or assistant superintendent named James Doogue; that the plaintiff was for several days kept at work sweeping paths on the Common, and in trimming trees on the Common and in the streets of the city of Boston; that then the plaintiff was sent by said superintendent to work under the direction of James Doogue, upon some trees standing and growing in the sidewalk of a public street called P Street in that part of the city of Boston known as South Boston that these trees were private property belonging to the abutter, upon whose premises they had stood for more than thirty years; that the abutter gave permission to have the trees cut down; that the plaintiff was ordered to ascend one of the trees and cut a certain branch therefrom; that while preparing to cut this branch, as he had been ordered to do and while in the tree for that purpose, he fell and received the injuries complained of.

The plaintiff testified that "on the 4th day of February they were engaged in cutting down trees on P Street. In the forenoon James Doogue was not there. At noon he came there and told me to cut this tree down. He told me to get a rope, and others to get ladders. He told me to get up on the tree with the saw, which I did. I went up as he told me, and I was putting the rope around the limb I was to cut. I was trying to do it, and it broke from under me, and I fell to the ground. As I went up into the tree he gave me no cautions. I followed his directions."

There was also evidence tending to show that the plaintiff was afterwards paid by the defendant for the time he was at work in the position from which he fell.

There was no evidence in the case that any notice was given to the mayor or aldermen of any intention to cut down or trim said trees, or that the board of aldermen gave its consent to the cutting down or trimming of said trees, unless the jury would be authorized to infer the same from the facts already stated. It was admitted that the street in which the tree was growing was a public way of the city of Boston.

At the request of the defendant, the judge ruled that there was no evidence upon which the jury would be authorized to find that the defendant was liable for any damages sustained by the plaintiff at the time he received the injuries in question; and ordered a verdict for the defendant; and, at the request of the parties, reported the case for the determination of this court, such order to be made therein as the law and the facts might require.

Judgment on the verdict.

J. G. Abbott & S. A. B. Abbott, for the plaintiff.

A. J. Bailey, for the defendant.

Field J. Devens & W. Allen JJ., absent.

OPINION

Field, J.

Our attention has not been called to any special laws relating to trees in the city of Boston, except the St. of 1799, c. 31. Section 5 of this act provides that "no person shall plant any tree in any street in the said town of Boston, without leave first obtained from the surveyors of highways, who shall have power to remove the same." It does not appear from the report when the accident happened; but, assuming that the Public Statutes correctly represent the statutory law as it existed at that time, surveyors of highways and road commissioners had authority to cut down and lop off trees and bushes in highways, town ways, or streets, except such as are needed for shade trees. Pub. Sts. c. 52, § 10.

The planting...