Murphy v. City of Lowell

• Decision Date: 28 June 1878
• Parties: Margaret Murphy v. City of Lowell. Patrick Murphy v. Same
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

124 Mass. 564

Margaret Murphy v. City of Lowell.

Patrick Murphy v. Same

Supreme Court of Massachusetts

June 28, 1878

Middlesex. Two actions of tort. The first was for personal injuries occasioned to the plaintiff by a stone thrown against her from a blast exploded in making excavations in the construction of a sewer in Suffolk Street, in Lowell. The second was brought by the husband of the plaintiff, in the first case for loss of services of his wife on account of the same injury, and also for injuries to his dwelling-house by stones from similar blasts. Answer, a general denial.

At the trial in the Superior Court, before Rockwell, J., it appeared that by the city charter of Lowell, which was duly accepted on July 1, 1875, the board of aldermen alone was authorized to cause main drains and common sewers to be laid down through any streets or private lands in Lowell; and that, in pursuance of this authority, the board of aldermen, by a resolution passed on December 28, 1875, duly approved by the mayor, ordered a common sewer to be built in Suffolk Street. There was no evidence that the city council passed any order or vote concerning the construction of this sewer.

It appeared that by the ordinances of the city of Lowell the superintendent of streets, under the direction of the mayor and board of aldermen, should superintend the building of common sewers; that the sewer in Suffolk Street was in process of construction under the direction of the board, in pursuance of the resolution, and under the superintendence of the superintendent of streets; that the latter employed one Holden to take charge of the building of the sewer, and Holden employed the workmen who worked thereon; that the superintendent of streets was paid a salary by the city, but received no other compensation; that Holden and the men whom he employed were paid by the city for the labor they performed; that on Suffolk Street there was a deep ledge of very hard rock, which it was necessary to blast in order to construct the sewer; that on April 3, 1876, Holden had charge of the blasting operations; that, owing to the carelessness of the workmen in blasting, the plaintiff in the first case while in the exercise of due care, was struck on the head by a stone thrown from the blast and received the injuries complained of; that the plaintiff in the second case owned the house where he and his wife resided, and that the same was damaged by similar blasts.

Upon this evidence, the judge ruled that, under the city charter the power to lay and construct common severs was confided to the board of aldermen; and that the city would not be liable on account of an injury caused by the carelessness of the workmen in blasting, while excavating for the construction of the sewer in question, authorized by resolution of the board of aldermen, and approved by the mayor, though the construction was under the superintendence of the superintendent of streets, in accordance with a provision of an ordinance of the city, and the workmen employed by him to do the work were paid by the city. The jury, by consent of parties, returned a verdict for the defendant in each case and the judge reported the cases for the...