Ryder v. City of Taunton

• Decision Date: 03 June 1940
• Citation: 306 Mass. 154,27 N.E.2d 742
• Parties: RYDER et al. v. CITY OF TAUNTON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

306 Mass. 154

27 N.E.2d 742

RYDER et al.

v.CITY OF TAUNTON.

Supreme Judicial Court of Massachusetts, Bristol.

June 3, 1940.

Exceptions from Superior Court, Bristol County; Morton, Judge.

Action of tort by Stillman F. Ryder and another against the City of Taunton for damages to cranberry land and crop allegedly caused by negligent manner in which repairs were made upon a public highway. Defendant's motion for a directed verdict was allowed, and the plaintiffs bring exceptions.

Exceptions overruled.D. A. Foley, of Boston, and J. H. Sullivan and I. L. Pollock, both of Taunton, for plaintiffs.

F. E. Smith, City Sol., of Taunton, for defendant.

COX, Justice.

This is an action of tort brought by the plaintiffs to recover for damages to their cranberry land and crop, allegedly caused by the negligent manner in which repairs were made upon a public highway. Bear Hole Road, admittedly a public highway, at one place is built upon, or forms a part of, a dam at the northerly end of Bear Hole Pond, so called, the outlet of which runs through the dam. In 1932 a concrete bridge was installed to replace the old wooden bridge which had collapsed. This work was done by the defendant's superintendent of streets. At the same time he installed two lengths of pipe across the roadway at a point fifteen or twenty feet to the west of the bridge, one of the purposes of which was to take care of water seepage. The jury could have found that these pipe lengths were so negligently installed that water from the pond gradually worked around the outer surface of the pipe so as to wash away the fill, eventually making a channel through the dam and causing its collapse. The plaintiff's exception to the allowance of the defendant's motion for a directed verdict presents the only question. It is stipulated that if there is no error, judgment is to be entered for the defendant; and if there is error, judgment is to be entered for the plaintiffs in the sum of $10,000 and costs. The defendant's only contention is that the work was done by a public officer for whose conduct the defendant is not responsible. No question is raised as to a permissible finding of negligence. The plaintiff's contention is that the work was done by agents of the defendant and not by public officers.

The charter of the defendant (St.1882, c. 211, § 9) required the city council to elect annually a superintendent of streets, and the amendment to the charter (St.1909, c. 448, § 19) conferred upon the municipal council created by that statute this power of election. Certain orders and rules of the municipal council were in evidence relative to the duties of the city engineer and of the superintendent of streets. No question is raised as to the authority of the municipal council to adopt these orders or as to their validity. See St.1909, c. 448, § 10; McNeil v. Mayor & City Council of Peabody, 297 Mass. 499, 502, 503, 9 N.E.2d 566; G.L.(Ter.Ed.) c. 39, § 1; c. 40, § 21. They provide for the election annually, or whenever a vacancy occurs, of a superintendent of streets; that his compensation shall be determined by the municipal council and that his whole time shall be at the disposal of the city; that he ‘shall perform the duties, exercise the powers and be subject to the obligations of a surveyor of highways as provided by statute, and shall, under the direction and control of the mayor and municipal council, have the general superintendence of all streets, ways, lanes, sidewalks, bridges, culverts within the street limits, and public squares within the city. He shall cause the same to be kept in repair and safe for public travel at all seasons of the year; shall make all necessary contracts for the supply of labor and materials and shall keep the public streets and other avenues of the city clean and in good condition for public use. He shall notify the mayor, chief of police or board of health of any encroachments, obstructions, or nuisances existing therein; and shall do all other things in relation thereto which the mayor or municipal council may order.’ One of the standing committees provided for by rule or order was that of streets, bridges and ashes. From the records of this committee it appeared that, prior to any work being done in the construction of the bridge in question, it was voted that the city engineer draw up plans and the superintendent submit cost of labor and materials for the construction of a cement bridge at Bear Hole; that ‘the question of building a bridge at Bear Hole be taken up with the mayor;’ and that the ‘superintendent proceed with the building of Bear Hole Bridge following the plan submitted by the city engineer.’

This is not a case where the plaintiffs seek to recover under the statute for damages resulting from a defect in the public highway, and cases that hold the municipality liable for such defects, however created, need not be discussed. See Blessington v. Boston, 153 Mass. 409, 26 N.E. 1113;Connelly v. Boston, 206 Mass. 4, 91 N.E. 998.

Apart from statutory liability, it is a rule of long standing that municipalities are not liable for the negligence of a public officer, so called, in the performance of some public service in which the municipality has no particular interest, and from which it derives no special benefit or advantage in its corporate capacity but which it is bound to see performed, in pursuance of a duty imposed by law for the general welfare of the inhabitants of the community. Such an officer is not regarded as a servant or agent of the municipality. Walcott v. Swampscott, 1 Allen 101;Bolster v. Lawrence, 225 Mass. 387, 114 N.E. 722 L.R.A.1917B, 1285;Daddario v. Pittsfield, Mass. 17 N.E.2d 894, and cases cited. An exception to this general rule is where a municipality undertakes to make repairs on its ways by its own agents. Tindley v. Salem, 137 Mass. 171, 172, 173,50 Am.Rep. 289, and cases cited. Butman v. Newton, 179 Mass. 1, 6, 60 N.E. 401,88 Am.St.Rep. 349.

Section 62 of G.L. (Ter.Ed.) c. 41, defines the duties of a highway surveyor, who, if chosen, shall have the exclusive control of the ordinary repair of public ways in his town without being subject to the authority of the selectman. Section 63 of said chapter contains a provision for the election of road commissioners in lieu of highway surveyor, and if such commissioners are chosen by section 63, it is provided by section 64 that they shall exclusively have the powers, perform the duties and be subject to the liabilities and penalties of selectmen and surveyors of highways relative to public ways, monuments,...