Norton v. City of New Bedford

• Decision Date: 19 May 1896
• Citation: 166 Mass. 48,43 N.E. 1034
• Parties: NORTON v. CITY OF NEW BEDFORD.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

166 Mass. 48

43 N.E. 1034

NORTON v. CITY OF NEW BEDFORD.

Supreme Judicial Court of Massachusetts, Bristol.

May 19, 1896

COUNSEL

J.W Cummings and E. Higginson, for plaintiff.

L. Le B. Holmes and E.D. Stetson, for defendant.

OPINION

BARKER J.

The plaintiff was employed as a laborer in the construction of a sewer, and while at work in the trench was hurt by the caving in of one side of the trench. The evidence would justify a finding that he was in the exercise of due care, and that the accident was due to a negligent omission to shore up or brace the sides of the trench, and that the negligence was that of persons whose sole or principal duty was that of superintendence. The defendant contends that the plaintiff accepted the risk of injury from want of proper shoring, but we are of opinion that upon the evidence this question was for the jury. See Coan v. City of Marlborough, 164 Mass. 206, 41 N.E. 238.

The defendant further contends that it is not liable for two other reasons: First. That the plaintiff was not an employé of the city, but of its board of public works, the powers and duties of which board are defined by St.1889, c. 167, as amended by St.1890, c. 342; and that in all matters pertaining to the laying out, constructing, and maintaining of sewers the board and its officers and superintendents act solely as public officers, for whose negligence the city is not answerable and do not act as agents of the city. Second. That if the city could ever be held liable for an injury received by a workman employed by the board and hurt while at work in a sewer, it could only be in the case of a sewer legally laid out; and that the sewer in which the plaintiff was hurt had not been legally laid out.

1. St.1889, c. 167, which established the board of public works for the city of New Bedford, went into effect on March 28, 1889, and its third and fourth sections, the provisions of which are not affected by the additional act (St.1890, c. 342), are as follows:

"Sec. 3. All the duties, powers and authority in relation to the laying out, locating anew, alteration or discontinuance of streets, or ways, or of altering or establishing the grade thereof; of laying, making and maintaining main drains, common sewers and sidewalks and keeping the streets and ways in repair, now by law vested in the city council of the city of New Bedford or either branch thereof, or the mayor and aldermen as surveyors of highways, or otherwise, are hereby vested in and shall be exclusively exercised by said board of public works; and all the rights, powers and duties of said city council of the city of New Bedford or either branch thereof, as public officers or otherwise, in relation to the streets, ways, sewers, drains, public parks, commons and public squares in said city of New Bedford, are hereby transferred to and exclusively vested in said board.

"Sec. 4. Said board, in relation to the powers, duties and authority by this act conferred upon it, shall have the same authority heretofore vesting in the mayor and aldermen of said city to make contracts in behalf of and binding upon the city; to appoint, subject to the provisions of chapter three hundred and twenty of the Acts of the year eighteen hundred and eighty-four and any acts in amendment thereof, its employees, define their duties and fix their compensation; and, in general, to do all things necessary to a proper performance of their duties."

The statute does not say in terms that all the acts of the board and of its officials shall be acts of public officers. On the contrary the third section, while vesting in the board exclusively all the rights, powers, and duties of the city council, or either branch thereof, in relation to streets, ways, sewers, drains, public parks, commons, and public squares, says explicitly that the duties, powers, and authority so vested in the board are all those of the council "as public officers or otherwise." And the fourth section provides that the board shall have the same authority theretofore vested in the mayor and aldermen to make contracts in behalf of and binding upon the city. We are of opinion that, while all the powers of the city in relation to sewers are vested in the board exclusively, it was not the intention and is not the effect of the statute to so change the law as to make the acts of the board or its officials in the construction of sewers acts of public officers. In vesting in the board all the powers of the city council "as public officers or otherwise," the statute does not, in the respect which we are now considering, change the nature of the act done under the power. ...