Mcintire v. Roberts

• Decision Date: 20 June 1889
• Citation: 22 N.E. 13,149 Mass. 450
• Parties: MCINTIRE v. ROBERTS et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

149 Mass. 450

22 N.E. 13

MCINTIRE v. ROBERTS et al.

Supreme Judicial Court of Massachusetts, Suffolk.

June 20, 1889

June 20, 1889

HEADNOTES

COUNSEL

J.A Maxwell and J.D. McLaughlin, for plaintiff.

A Hemenway and J.F. Wheeler, for defendants.

OPINION

FIELD J.

It is plain that the opening in the wall of the building for access to the elevator from the street was outside the limits of the street, and that the plaintiff did not enter the building by any invitation of the defendants. The contention is that the defendants were negligent in leaving this opening unguarded. It is said of the liability of the city in Alger v Lowell, 3 Allen, 402, 405, that "the place where the plaintiff fell was indeed outside the line of the street but the defect in the street which occasioned the injury was the want of a railing, if one was necessary at that place to make the street safe and convenient for travelers in the use of ordinary care. And the city would have an undoubted right to erect such a railing, although it might obstruct the entrance to the passage-way of an abutter; because no person has a right to an open access to his land adjoining a street of such a character as to endanger persons lawfully using the street for purposes of travel." In Franklin v. Fisk, 13 Allen, 211, it is said that, "when highways are established, they are located by the public authorities with exactness, and the easement of the public, which consists of the right to make them safe and convenient for travelers, and to use them for public travel, does not extend beyond the limits of the location. *** The right of adjoining proprietors to erect structures upon their land up to the line of the highway is exercised everywhere." See Mayo v. Springfield, 136 Mass. 10. If this elevator opening rendered the sidewalk permanently dangerous to travelers, it was undoubtedly the duty of the city of Boston to put up a barrier, and if the defendants removed it they might be liable to travelers who were injured in consequence of the removal of the barrier; but it has not yet been decided in this commonwealth that at common law abutters are liable to travelers for injuries received in consequence of excavations made in their land outside the limits of a highway, and Howland v. Vincent, 10 Metc. 371, is a stronger case for the plaintiff than the case at bar. It is argued that that case is opposed to the weight of authority elsewhere, and that a hole outside the limits of a highway, yet so near to it as to make the highway unsafe for travelers, constitutes a public nuisance; and that, if a person creates a public nuisance, he is liable to individuals for any special damages suffered therefrom. See Barnes v. Ward, 9 C.B. 392; Fisher v. Prowse, 2 Best & S. 770; Hadley v. Taylor, L.R. 1 C.P. 53; Beck v. Carter, 68 N.Y. 283; Bond v. Smith, 44 Hun, 219; Murray v. McShane, 52 Md. 217; State v. Society, 42 N.J.Law, 504; Haughey v. Hart, 62 Iowa, 96, 17 N.W. 189.

The occupier of a building, who negligently permits a private way leading to it, which is under his control, to be in an unsafe condition, by reason of an excavation or embankment so near to it as to make traveling on it dangerous, is liable for injuries received by any person who is lawfully using the way with due care. Mellen v. Morrill, 126 Mass. 545; Oliver v. Worcester, 102 Mass. 489. But abutters on a public way have not control of the way, nor do travelers use a public...