Prince v. City of Lynn
| Decision Date | 10 May 1889 |
| Citation | 149 Mass. 193,21 N.E. 296 |
| Parties | PRINCE v. CITY OF LYNN. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Henry F. May, for plaintiff.
J.W Berry, for defendant.
The plaintiff seeks, in an action of tort at common law, to recover damages against the defendant for alleged negligence of the superintendent of streets of the city of Lynn in making certain repairs on one of the streets in that city, by which negligence she was injured while lawfully using such street. Conceding the general proposition that a town is not responsible for the acts of public officers while engaged in the performance of their duties as prescribed and regulated by the statute, she contends that the case at bar comes within that class of cases in which it has been held that a town is responsible when, assuming for itself the conduct and management of work such as that in which the superintendent was engaged, it intrusts the work to agents of its own, whom it directs and controls. Walcott v. Swampscott, 1 Allen, 101; Hawks v Charlemont, 107 Mass. 414; Deane v. Randolph, 132 Mass. 475; Waldron v. Haverhill, 143 Mass. 582 10 N.E. 481; Doherty v. Braintree, 148 Mass.---, 20 N.E. 106, (Norfolk, February, 1889.)
By the charter of the city of Lynn, the power, in such manner as its city council may determine, by any by-law made for the purpose, to "appoint or elect all subordinate officers not herein otherwise directed, for the ensuing year, define their duties and fix their compensations in cases where such duties and compensations shall not be defined and fixed by the laws of the commonwealth," was conferred upon the city council. Charter, § 8. Under an ordinance of the city which provided that there should be elected by ballot "a superintendent of streets, who shall perform the duties and exercise the power of a surveyor of highways under the statutes of the commonwealth," such superintendent was duly elected. Although the ordinance had given this officer the name of superintendent, he was still a surveyor of highways, whose powers and duties were defined by reference to the statutes of the commonwealth. It was under the authority thus given him that he was acting in repairing the streets when the alleged injury to the plaintiff occurred. The laborers employed were hired by him, and no evidence was offered that in doing that in which he was engaged he was proceeding under any express vote of the city or any immediate direction from its officers. By section 27 of the statutes and ordinances of the city, it is provided that the superintendent shall perform his duties "under the care and direction of the mayor and aldermen," etc., and it is the contention of the plaintiff that, by reason of this fact, the city has created a new officer, who is its agent, and not merely adopted a mode of filling an existing statutory office. The expenditure of money intrusted to highway surveyors for the repair of highways in...
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