Torphy v. City of Fall River

• Decision Date: 12 June 1905
• Citation: 74 N.E. 465,188 Mass. 310
• Parties: TORPHY v. CITY OF FALL RIVER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

188 Mass. 310

74 N.E. 465

TORPHY v. CITY OF FALL RIVER.

Supreme Judicial Court of Massachusetts, Bristol.

June 12, 1905

COUNSEL

J. W. &amp C. R. Cummings, for plaintiff.

Hugo A Dubuque, for defendant.

OPINION

BRALEY J.

In the separation of grades under the provisions of St. 1900, p 471, c. 472, to carry out the report of the commissioners, it became necessary during the progress of the work to temporarily close certain of the public ways of the city. For this purpose a general order had been passed by the city council authorizing the mayor to designate in writing these streets, and to fix the length of time and the conditions under which they should remain closed. Acting under this order, he authorized the railroad company, which was required to perform the work, to close a part of Ballard street, in which the plaintiff lived, while it was being wrought to a new and lower grade that had been established. The defendant takes the position that while this was being done, and until reopened to travel, it was relieved by the intervention of the railroad company of all liability for a defective public way caused by the act of reconstruction. But, if held not to be exempt, it then urges that the barrier and signs which had been put up giving notice of its closure were maintained, or that the general condition of the surface of the street was a sufficient warning to travelers that it was not open. It also denies that it had notice of the defect which caused the plaintiff's injury, and claims that at the time of the accident she was negligent. The work may be considered as in the nature of specific repairs which ordinarily would be made by the defendant, but, if done by the railroad company, the character of the general undertaking of which the change of grade formed a part did not relieve the location within the limits of the layout from the public easement. This could be accomplished only by a legal discontinuance either by the defendant or upon a taking for another public use. Tinker v. Russell, 14 Pick. 279. See New England Telephone & Telegraph Co. v. Boston Terminal Co., 182 Mass. 397, 400, 65 N.E. 397. Consequently neither the order nor the action taken thereunder worked a discontinuance. It still remained a public way, which the defendant was charged with the primary duty of keeping reasonably safe for the use of travelers. Pub. St. 1882, c. 52, § 1. If the alteration formed part of a public improvement over the whole of which the city did not exercise municipal control, yet the street could not lawfully be closed, except by its permission, when acting within the implied power that necessarily must be invoked to temporarily exclude travelers from a public way that is being partially reconstructed. Jones v. Collins, 177 Mass. 444, 59 N.E. 64; s. c., 188 Mass. 53, 74 N.E. 295. By the interposition of the railroad company the city was not deprived of this right of control, nor relieved of its statutory duty. Currier v. Lowell, 16 Pick. 170; Merrill v. Wilbraham, 11 Gray, 154. Nor could it delegate this requirement thus directly imposed, and thereby secure exemption from liability to those suffering injury, if this duty remained unperformed. Howard v. Mendon, 117 Mass. 585; Blessington v. Boston, 153 Mass. 409, 26 N.E. 1113. But, while the alteration called for by the report was being made, the defendant, under the method it adopted, could give notice to the public by signs or a barrier that the street had been closed; and, if this was properly done, then its responsibility would be suspended during the time either or both were maintained, and until it was reopened to travel. Jones v. Collins, ubi supra. That such a barrier, with suitable signs displayed thereon, had been erected by the railroad company before the work of excavating began, does not seem to have been in dispute, or that, if either had been maintained, the plaintiff could not recover. But if the bars and posts used for this purpose were discontinued before the final grade was finished, travelers well might infer that they were at liberty to enter upon and use the street. Although living in that portion which was being changed, and subjected to considerable inconvenience by the impairment of the opportunity of free access to other streets, or of passing to and from her house, she enjoyed no larger rights than other travelers. If legally closed to them, it was closed to her. Thereafter, as a traveler, she took the risk of any injury received. Jones v. Collins, ubi supra.

But there was evidence introduced by her that after the roadbed had been wrought preparatory to finishing it to a surface grade, and before the accident, the barrier had been entirely removed, while ordinary travel had been resumed. If such removal or discontinuance had taken place, the signs went with it, and except the condition of its surface and the general character of the work, both of which were open to common observation, there would be no warning that the way was unsafe. Upon this evidence the jury could find by the length of time it apparently had been left unobstructed that without any formal declaration by the mayor or other municipal authorities of its reopening, their assent to the resumption of travel might...