Trum v. Town of Paxton

Decision Date14 November 1952
PartiesTRUM v. TOWN OF PAXTON et al.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Frederick G. Fisher, Jr., Boston, for plaintiff.

Richard W. Mirick, Worcester, for defendants.


WILLIAMS, Justice.

This is an appeal by the plaintiff from an order of a judge of the Superior Court sustaining a joint demurrer of the defendants to the plaintiff's declaration on the ground that the 'matters contained in each count' were insufficient in law to enable the plaintiff to maintain his action. The plaintiff seeks to recover damages for the deaths of twenty cows allegedly caused by the eating of 'poisonous cuttings of brush' on a public way in the town of Paxton. In each of the counts against the town, which are numbered 1 to 20, the plaintiff alleges that employees, servants, or agents of the town negligently caused and allowed 'poisonous cuttings of brush' to remain on Marshall Street, a public way of the town; that the plaintiff was travelling on the way with a cow designated by a certain registry number; that the cow ate the cuttings and 'died therefrom'; that 'said cuttings constituted a defect on the highway' which should have been remedied; that the injury could have been prevented by the exercise of reasonable care on the part of the town; and that due notice of the time, place and cause of the damage was given in accordance with G.L. (Ter.Ed.) c. 84, § 18, as appearing in St.1933, c. 114, § 1; § 19, as amended by St.1933, c. 114, § 2. In the twenty-first count which is the only count against the defendant Pike it is alleged that he, as road commissioner of the town, negligently caused and allowed 'poisonous cuttings of brush' to fall upon and remain on the said public way, which cuttings were eaten by the cows of the plaintiff and caused their deaths.

If the plaintiff has a right of action against the town it arises under G.L. (Ter.Ed.) c. 84, § 15. See Hill v. Boston, 122 Mass. 344. By § 1 of that chapter the duty is imposed upon the town to keep its ways safe and convenient for public travel. The allegation by the plaintiff that he was a traveller is admitted by the demurrer. It is settled that as a traveller he could lawfully use the town way for the passage of his animals. Gregory v. Adams, 14 Gray 242, 248; Wershba v. Lynn, 324 Mass. 327, 330-331, 86 N.E.2d 511, 14 A.L.R.2d 179.

The question for decision is whether the poisonous cuttings of brush could be found to be a defect in the way for which the town would be liable. It is not alleged that they physically impeded or obstructed travel. The case therefore differs from Doloian v. Auburn, 292 Mass. 283, 198 N.E. 247, where brush was piled on the travelled way, and from Bowman v. Newburyport, 310 Mass. 478, 38 N.E.2d 682, where piles of leaves were being burned in the gutter. Towns 'are not liable for * * * obstructions in portions of the highway not a part of the travelled path, and not so connected with it that they will affect the security or convenience for travel of those using the travelled path.' Smith v. Wendell, 7 Cush. 498, 500; Kellogg v. Northampton, 4 Gray 65, 69; Paine v. Brockton, 138 Mass. 564; Harwood v. Oakham, 152 Mass. 421, 427, 25 N.E. 625; Felch v. West Brookfield, 184 Mass. 309, 68 N.E. 227; Lynch v. Boston, 186 Mass. 148, 149, 71 N.E. 301. Although it has been held that a structure which was not located on the travelled part of the way, but which extended over it and because of its defective condition fell upon the way, can be found to be a defect, Drake v. Lowell, 13 Metc. 292; Pedrick v. Bailey, 12 Gray 161; Day v. Milford, 5 Allen 98, the court in Hixon v. Lowell, 13 Gray 59, at page 63, where overhanging snow and ice fell upon the street, held that the city was not liable, saying, 'The traveller may be subjected to inconvenience and hazard from various sources, none of which would constitute a 'defect or want of repair' in the way, for which the town would be responsible. * * * He might be obstructed by a concourse of people, by a crowd of carriages; his horses might be frightened by the discharge of guns, the explosion of fireworks, by military music, by the presence of wild animals; his health might be endangered by pestilential vapors, or by the contagion of disease; and these sources of discomfort and danger might be found within the limits of the highway * * * and yet that highway not be, in any legal sense, defective or out or repair. It is obvious that there may be nuisances upon travelled ways, for which there is no remedy against the town.' This language was quoted with approval in Keith v. Easton, 2 Allen 552, where the town was held not to be liable for injuries to a horse which had been frightened by a 'daguerreotype saloon' standing partly within the limits of the highway but off the travelled way.

The instant case is essentially like those where horses have been frightened by conditions on the highway. It is well settled that in such cases cities and towns are not liable for resulting damage. Bowes v. Boston, 155 Mass. 344, 350, 29 N.E. 633, 15 L.R.A. 365. This is so whether or not the cause of fright was on the travelled part of the way. In Kingsbury v. Dedham, 13 Allen 186, 189, it was said that there is no case decided by this court where it has been held that 'an object in a highway, or the condition of the surface of a road which is not otherwise a hindrance or obstacle to travellers except that it may by its appearance or shape be the cause of fright in a horse, and over and by which a traveller might have passed with safety but for the fear excited in the annimal, can be regarded as a defect or want of repair for which a town is liable.' In Cook v. Charlestown, 98 Mass. 80, a horse was frightened by the body of a dead horse lying on the travelled way which was an obstruction to travel and consequently a defect. There was no contact with this obstruction and the carriage was upset where the way was safe and convenient. In holding that the town was not liable the court said, referring to the obstruction, 'It is not its quality as an obstruction which causes the injury complained of, but its quality as an object of terror to the horse'. 98 Mass. at page 82. Similarly here it was the attractive quality of the cuttings as a food and not their character as an obstruction to travel which caused the injuries to the cows. We think that counts 1 to 20 stated no cause of action against the town and that in respect to those counts the demurrer was properly sustained.

In count 21 it is sought to recover damages from the road commissioner of the town for the death of the twenty cows on the ground that he negligently caused and allowed the cuttings to fall upon and remain on the public way. The election of road commissioners by a town is governed by G.L. (Ter.Ed.) c. 41, § 63. In the following § 64 it is provided, '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'. Under § 62 a highway surveyor 'shall have the exclusive control of the ordinary repair of public ways in his town without being subject to the authority of the selectmen.' By G.L. (Ter.Ed.) c. 84, § 7, it is provided that 'Surveyors of highways and road commissioners shall remove whatever obstructs the public ways within their respective towns or districts, or endangers, hinders or incommodes persons traveling thereon'. Road commissioners are public officers and are not agents or servants of the town. Clark v. Easton, 146 Mass. 43, 14 N.E. 795; McManus v. Weston, 164 Mass. 263, 41 N.E. 301, 31 L.R.A. 174; Wood v....

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