Riley v. New England Tel. & Tel. Co.

• Decision Date: 05 March 1968
• Citation: 234 N.E.2d 746,354 Mass. 8
• Parties: Raymond RILEY v. NEW ENGLAND TELEPHONE AND TELEGRAPH COMPANY et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 746

234 N.E.2d 746

354 Mass. 8

Raymond RILEY v. NEW ENGLAND TELEPHONE AND TELEGRAPH COMPANY et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Feb. 8, 1968.

Decided March 5, 1968.

Albert P. Zabin, Boston, for plaintiff.

Leon F. Sargent, Boston, for defendant New England Telephone and Telegraph Co.

John Arthur Johnson, Boston, for defendant Boston Edison Co.

Before WILKINS, C.J., and SPALDING, WHITTEMORE, CUTTER, and KIRK, JJ.

WHITTEMORE, Justice.

The plaintiff sought recovery for injuries sustained when his truck driven by him slid on his icy driveway on Gambier Street, a public way in Newton, against a pole jointly owned by the defendants in the public way at the corner of the driveway. The judge in the Superior Court directed verdicts for the defendants.

Most of the facts are not in dispute. The plaintiff's driveway was nine feet wide. There was a stone wall along its inner edge which retained the lawn and the foundation of the plaintiff's house. There was also a low retaining wall on the driveway's outer edge between it and the driveway of the next house. The pole stood a short distance in from the traveled part of the way and nearly in the line of the low retaining wall. The driveway tilted very slightly toward the pole.

On February 7, 1961, at 8:45 P.M. the plaintiff was backing his truck into the driveway. The street was covered with snow and ice. The plaintiff had previously plowed the driveway, using the truck with an attached snowplow, to a width of from eight to eight and one-half feet. There was about an inch of hard packed snow on the plowed portion of the driveway. The truck was loaded with half a ton of sand and was equipped with chains and the plow. It was six feet six inches wide with the plow attached and had a spare tire protruding from the driver's side of the truck. To maneuver the truck in its backward course the plaintiff had opened the door and was looking directly back to be sure the spare tire cleared the pole. As the truck backed over the sidewalk with its rear four to five feet beyond the pole it began to slide toward the pole. The plaintiff started to close the door but before he could get his arm back in through the open window of the door it was caught between the windowsill and the pole.

The pole had been erected in 1929 and was moved slightly in 1946 pursuant to approval of the new location by the board of aldermen. The plaintiff in 1946 or 1947 and in 1951 or 1952 had complained to the Boston Edison Company about the pole. In 1957 or 1958 he talked to both the defendants about getting the pole relocated. On November 10, 1960, the dcefendants jointly petitioned the board of aldermen for an order of relocation. On December 5, 1960, the board issued an order by which it 'DIRECTED that the location * * * be altered so that hereafter said poles (sic) shall be located, substantially as shown on the (attached) plan.' This was to a point about thirteen feet farther down Gambier Street. The order also contained this direction: 'One existing * * * pole to be removed.' Edison in December, 1960, set up the new pole and a few days later changed over its lines. The jury could have found that the plaintiff wrote to the telephone company in January, 1961, asking it to take the old pole down. By referring to photographs in evidence they could have found that the telephone company had not removed its wires before the time of the accident.

Two statutes are relevant. They provide: G.L. c. 166, § 21 (as amended through St.1951, c. 476, § 1), 'A company incorporated for the transmission of intelligence by electricity or by telephone * * * or for the transmission of electricity for lighting, heating or power * * * may, under this chapter, construct lines for such transmission upon, along, under and across the public ways * * * but such company shall not incommode the public use of public ways * * *.' G.L. c. 166, § 22 (as amended through St.1948, c. 550, § 36), 'A company desiring to construct a line for such transmission upon, along, under or across a public way shall in writing petition the board of aldermen of the city * * * where it is proposed to construct such line for permission to erect or construct upon, along, under or across said way the wires, poles, piers, abutments or conduits necessary therefor. * * * After a public hearing * * * the board of aldermen * * * may by order grant to the petitioner a location for such line, specifying therein where the poles, piers, abutments or conduits may be placed * * *. After the erection or construction of such line, the board of aldermen * * * may * * * direct an alteration in the location of the poles * * *.'

Undoubtedly the 1946 order of the board of aldermen made legal the presence of the pole. But the 1946 order was superseded by the order of December 5, 1960. After the expiration of a reasonable time for compliance with that order, the defendants had no right to maintain the pole in the old location. 'The maintenance of the pole in the public highway by the defendant, without a lawful permit of the board of aldermen, created a nuisance in the highway * * *.' Lynch v. Lowell Elec. Light Corp., 263 Mass. 81, 86, 160 N.E. 413, 415. See Commonwealth v. City of Boston, 97 Mass. 555...