Rochefort v. Town of Attleborough

• Decision Date: 26 June 1891
• Parties: ROCHEFORT v. TOWN OF ATTLEBOROUGH.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

154 Mass. 140

27 N.E. 1013

ROCHEFORT

v.TOWN OF ATTLEBOROUGH.

Supreme Judicial Court of Massachusetts, Suffolk.

June 26, 1891.

Report from superior court, Bristol county; JOHN W. HAMMOND, Judge.

Action by Andrew Rochefort against the town of Attleborough for personal injuries suffered by plaintiff by reason of a defect in a public highway over which he was driving. The defect was a hole in the road over a culvert through which the water ran from one side of the road to the other. The court directed a verdict for defendant on the ground that plaintiff had failed to show any negligence for which the town was liable.

Morton & Jennings, for plaintiff.

C.W. Clifford and G.A. Adams, for defendant.

C. ALLEN, J.

The ground on which the plaintiff seeks to maintain his case is that the culvert was built in an improper manner, so that the earth above it was likely to subside and make a hole in the road; and that, under these circumstances, greater diligence was required on the part of the town authorities, in guarding against injury or damage to travelers, than otherwise might have been sufficient. Olson v. Worcester, 142 Mass. 536, 8 N.E.Rep. 441. There was, however, no evidence that the hole which caused the injury to the plaintiff had actually existed for any such length of time before the accident as to make the town chargeable with notice thereof, and there had been no hole in the road at that place for more than a year previously, although there was much heavy travel over the road, and one of the plaintiff's witnesses went so far as to testify that he had himself driven heavy loads across there thousands of times. Under such circumstances, although the culvert was not so well built as to be likely to stand many years without repairs, it could not properly be held that the danger of a subsidence of the road was so imminent as to warrant holding the town chargeable with actionable neglect. It would throw too heavy a burden upon towns for the court, without more explicit legislation looking to that end, to hold them responsible merely because a road is so constructed that a defect therein of this character is likely to occur in the remote future. There was no apparent probability that the culvert would break down all at once and without previous warning, thus making it dangerous to pass over it at all. McGaffigan v. City of Boston, 149 Mass. 289, 21 N.E.Rep. 371; Adams v. Chicopee, 147 Mass. 440, 18 N.E.Rep. 231; Hanscom v. Boston, 141 Mass....