Post v. City of Boston

Decision Date25 February 1886
Citation4 N.E. 815,141 Mass. 189
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

T.M. Babson, Asst. City Sol., for defendant.

Stillman B. Allen and Joseph Bennett, for plaintiff.



Under the General Statutes, c. 44, § 22, a person who received injury through a defect in a highway might recover damages of the town by law obliged to repair the same, if such town had reasonable notice of the defect, or if the same had existed for the space of 24 hours previous to the occurrence of the injury. Under this statute it was held that it was the intention of the legislature to limit the liability to cases where the precise defect which caused the injury was known to the town, or had existed for 24 hours; and that, if the defect had not existed for 24 hours, the town could not be held liable on the ground that its agents had constructed or repaired the way so negligently that it was reasonable to suppose that such a defect would be produced. Monies v. Lynn, 121 Mass. 442, 444. And in a later stage of the same case it was declared that a liability to become defective is not in itself a defect. 124 Mass. 171. See, also, Hutchins v. Littleton, 124 Mass. 289. Under that statute, and earlier ones to the same effect, it had often been held that the liability of the town became absolute if the defect had existed for 24 hours, and that the town could not exonerate itself by proof of due diligence on its part. George v. Haverhill, 110 Mass. 506; Bodwell v. North Andover, Id. 511, 512.

The statute of 1877, (chapter 234,) which was an act to amend the above chapter of the General Statutes, made two changes in the section referred to. In the first place, it did away with the absolute liability imposed on towns where the defect had existed for 24 hours, and exonerated them from liability in all cases where there had been no lack of proper diligence on their part, (Rooney v. Randolph, 128 Mass. 580; Hayes v. Cambridge, 136 Mass. 402; S.C. 138 Mass. 461;) and it substituted therefor a liability for an injury or damage received through a defect which might have been remedied, or which injury or damage might have been prevented, by reasonable care and diligence on the part of the town, if such town had reasonable notice of the defect, or might have had notice thereof by the exercise of proper care and diligence on their part, although the defect had not existed for any particular length of time, and although the town had no actual notice thereof. This statute (reenacted in Pub.St c. 52, § 18) is now in force. It has essentially modified the rule as declared in...

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