Neff v. Town of Wellesley

• Citation: 20 N.E. 111,148 Mass. 487
• Parties: NEFF v. TOWN OF WELLESLEY
• Decision Date: 28 February 1889
• Court: United States State Supreme Judicial Court of Massachusetts

148 Mass. 487
20 N.E. 111

NEFF
v.
TOWN OF WELLESLEY

Supreme Judicial Court of Massachusetts, Middlesex.

February 28, 1889.

Exceptions from superior court, Middlesex county; BRIGHAM, Chief Justice.

Action by William J. Neff against the town of Wellesley, for injuries received by plaintiff in being struck, while crossing a street, by the tongue of a cart driven by an employe of defendant's poor-farm. Plaintiff was blind, being able only to distinguish light from dark. The requested instructions passed upon were as follows: “(9) That the plaintiff, being blind and infirm, and going about the streets unattended, took more than ordinary risks, and was bound to exercise more than ordinary care to avoid danger from passing vehicles; (10) that, if plaintiff's negligence contributed in part to cause the accident, plaintiff cannot recover, even if it appears that defendant was also negligent; (11) if the plaintiff could by reasonable care have ascertained, before attempting the crossing, that a team was approaching, and its direction, he should have done so, and waited until the danger was past.” Judgment for plaintiff, and defendant excepts.

[148 Mass. 493]

[20 N.E. 112]

C. Abbott, for plaintiff.

C.E. Washburn, for defendant.

KNOWLTON, J.

To determine whether the defendant town is liable for the negligence of Crawford in driving its team, we must answer two questions: First, was the business in which Crawford was employed such that engaging in it would subject a city or town to liability for negligence in conducting it? Secondly, was he a servant of the town, or was he a representative of a board of public officers acting independently, merely in the performance of a public duty?

It is a general rule that a town is not liable for the negligence of its agents or servants in a matter in which it has no interest, and which has no direct or natural tendency to injure any individual in person or property, and which it has in charge solely in the performance of a public duty imposed upon it by law. Tindley v. Salem, 137 Mass. 172;Hill v. Boston, 122 Mass. 344. Whether this rule should be held to apply to the use of a farm for no other purpose than the support of paupers who are a charge upon the town it is unnecessary to decide; for the jury have found that paupers whose support was chargeable to another town, and to the commonwealth, were boarded for pay upon the defendant's farm, and that persons employed to work upon the highways were also boarded there, and that horses were...