Sawin v. Connecticut Valley St. Ry. Co.

• Decision Date: 25 November 1912
• Citation: 213 Mass. 103,99 N.E. 952
• Parties: SAWIN v. CONNECTICUT VALLEY ST. RY. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

213 Mass. 103

99 N.E. 952

SAWIN v. CONNECTICUT VALLEY ST. RY. CO.

Supreme Judicial Court of Massachusetts, Franklin.

November 25, 1912

COUNSEL

Frank J. Lawler, of Greenfield, for plaintiff.

Fredk. L. Greene and Francis N. Thompson, both of Greenfield, for defendant.

OPINION

RUGG C.J.

This is an action of tort to recover damages for injuries sustained by the plaintiff while a passenger upon a car of the defendant. The accident occurred in the town of Montague at a place where the defendant's tracks had been constructed in accordance with a location duly granted within the limits of the highway, but on its side and not within its wrought portion. The cause of the accident was the giving way of a culvert in consequence of a heavy rain following a severe snow storm. This culvert had existed long prior to the construction of the defendant's tracks, and had been maintained by the town of Montague, except that since the laying of the defendant's tracks in 1896 it had washed out twice, and thereafter had been enlarged and lengthened, to the expense of which by agreement the defendant contributed. The culvert was wholly within the highway. Its dimensions were determined by the town authorities, and it carried the surface water from a considerable territory lying outside the highway. The immediate cause of the accident was the flowing of water over the highway and tracks of the defendant by reason of obstruction of the culvert by ice. In previous years the town had kept the culvert clear, but did not do so during the year of the accident, although the defendant had no knowledge of any change in its practice. Water upon and over the tracks of the defendant was not unusual. Upon these facts the chief justice of the superior court 'found as a matter of fact that the defendant company was not negligent in regard to the condition of its car tracks or power, nor in the management of its car at the time of the accident, but, however, ruled that the defendant company was bound to maintain beneath its tracks within the highway over the culvert such structure or foundation as to enable it to run cars safely thereover in the event that the town of Montague failed so to do.' Having made these findings and this ruling, he found for the plaintiff. The defendant's exception to the ruling brings the case here.

This ruling is interpreted to mean that the defendant was bound to discharge the obligations of a common carrier touching the foundations of its tracks, not that it was absolutely bound to guard against every conceivable emergency, and that it did not discharge such obligation by relying upon the town and its officers to do their duty as to the culvert.

There is nothing in the record to indicate that there were terms or conditions in the original location granted to the defendant by which it was bound to do anything as to the culvert. Reasons which might apply under such circumstances therefore, may be laid on one side. See Selectmen of Gardner v. Templeton St. Ry., 184 Mass. 294, 68 N.E. 340; Selectmen of Wellesley v. Boston & Worcester St. Ry., 188 Mass. 250, 74 N.E. 355; Worcester v. Worcester Cons. St. Ry., 192 Mass. 106, 78 N.E. 222; Selectmen of Clinton v. Worcester Cons. St. Ry., 199 Mass. 279, 85 N.E. 507. The point now presented for decision has never before arisen in this commonwealth. It has nothing to do with the repair of the surface of highways for general travel. Cases like Leary v. Boston Elev. Ry., 180 Mass. 203, 62 N.E. 1, and Hyde v. Boston, 186 Mass. 115, 71 N.E. 118, have no bearing.

The precise point is the extent to which a street railway is required in the performance of its duty as a common carrier of passengers to provide for the support of its track and the extent to which it may rely upon the public authority in this regard. The obligation to its passengers in justice can be no more extensive than its power to provide adequate foundations. In reason, the street railway cannot be held to a degree of liability higher than it can provide against in the exercise of its right. The statutes make no definite provision upon the subject. The board granting the location is empowered to 'prescribe how the tracks shall be laid and the kind of rails, poles, wires and other appliances which shall be used and' as to matters not treated in the general provisions of law in addition may 'impose such other terms, conditions and obligations incidental to and not inconsistent with the objects of a street railway company as the public interests may in their judgment require.' St. 1906, c. 463, part 3, §§ 7, 64, 65, as amended by St. 1909, c. 417, §§ 1, 2, 3. The laying of tracks in a broad sense, includes the preparation of proper foundations to support the weight of the rails, cars and loads carried, as well as the amount and character of ballast to be used and the size and type of rails and the nature of their binding. By St. 1906, c. 463, part 3, § 79, a street railway company is authorized to 'open any street, highway or bridge in which any part of its railway is located, for the purpose of making repairs or renewals,' and the officer having charge of streets is required to issue permits therefor. The fair implication from language of the statute is that, in addition to the express requirements of the public board as set forth in the location, the company may satisfy the reasonable needs of its business in the respects pointed out, both in original construction and in subsequent repairs.

Broader considerations lead to the same conclusion. The street railway is an instrumentality for the accommodation of public travel. As a common carrier of passengers, it is bound to exercise the utmost diligence consistent with the nature and extent of its business and its practical operation for the safety of those whom it undertakes to transport. It is authorized to use instrumentalities denied to the ordinary traveler upon highways. Its cars are as matter of common knowledge far heavier than vehicles for which municipalities are required by law to maintain highways in safety. The teams and carriages, for the safe and convenient passage of which by travelers the highways must be kept in repair under R. L c. 51, § 1, are confined to the same general kind in use when the statute first was enacted, and do not include electric cars. Doherty v. Ayer, 197 Mass. 241, 83 N.E. 677, 14 L. R. A. (N. S.) 816, 125 Am. St. Rep. 355. Moreover, the weight of carriage for which liability exists on the part of a city or town for failure to repair does not exceed six tons (R. L. c. 51, § 18), a weight far less than that of the electric car in common use. If in other respects the way is safe and convenient for the ordinary traveler, it does not become out of repair merely because not safe for such an instrumentality of travel as...