Newton v. City of Worcester

• Decision Date: 23 November 1897
• Citation: 48 N.E. 274,169 Mass. 516
• Parties: NEWTON v. CITY OF WORCESTER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

169 Mass. 516

48 N.E. 274

NEWTON v. CITY OF WORCESTER.

Supreme Judicial Court of Massachusetts, Worcester.

November 23, 1897

COUNSEL

Charles C. Milton and Charles W. Saunders, for plaintiff.

Arthur P. Rugg and W.S.B. Hopkins, for defendant.

OPINION

ALLEN, J.

We think a somewhat broader construction should be given to the language of St.1896, c. 540, than was given to it by the presiding justice. The legislature obviously thought that too heavy a burden rested upon cities and towns under the previous statutes, and the statute was probably designed to exempt them from liability under such circumstances as were found to exist in Adams v. Chicopee, 147 Mass. 440, 18 N.E. 231, and Hughes v. City of Lawrence, 160 Mass. 474, 36 N.E. 485. Accordingly, it is now provided that "no city or town shall be liable for any injury or damage to person or property hereafter received or suffered in or upon any part of a highway, townway, causeway, or bridge, by reason or in consequence of snow or ice thereon, if the place at which the injury or damage was received or suffered was at the time of the accident otherwise reasonably safe and convenient for travelers." This must mean, we think, that a way shall not be deemed unsafe by reason of snow or ice thereon if it would be reasonably safe and convenient for travelers but for the presence of snow or ice thereon. The second request for instructions, therefore, should have been given.

The plaintiff contends that the defendant did not properly save an exception upon the above point. But it appears to have been well understood on all hands that the defendant wished to have the construction of the statute determined by this court in case the ruling of the presiding justice should be adverse to its contention. Under these circumstances, it was quite right to allow the exceptions, even though no statement was made in express terms that an exception was taken. The allowance of the exceptions was merely carrying out the understanding which obviously existed between the court and the counsel on both sides; and this might be done, according to the construction which has heretofore been put upon the rule of the superior court. Leyland v. Pingree, 134 Mass. 367; Thwing v. Clifford, 136 Mass. 482. Exceptions sustained.