Washburn v. Inhabitants of Easton

• Decision Date: 28 February 1899
• Citation: 172 Mass. 525,52 N.E. 1070
• Parties: WASHBURN v. INHABITANTS OF EASTON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

172 Mass. 525

52 N.E. 1070

WASHBURN v. INHABITANTS OF EASTON.

Supreme Judicial Court of Massachusetts, Bristol.

February 28, 1899

COUNSEL

F.S. Hall, for plaintiff.

H.J Fuller, for defendants.

OPINION

HAMMOND J.

The plaintiff, while traveling with his team in a southerly direction on the highway, overtook another team, and while he was attempting to pass it on the left his carriage came in contact with some shade trees, and he was hurt. These trees were in a line substantially parallel with the easterly wall of the highway, and about 6 feet distant therefrom, and were in the shoulder of the part of the road which was worked for travel, and distant easterly from such part 2 feet and 9 inches. The trees had been set out about 10 years before under Pub.St. c. 54, § 6, by the road commissioners of the town, who had charge of all matters pertaining to shade trees. The road was about 40 feet wide between the walls, and the part worked for travel near the place of the accident was about 13 or 14 feet wide. On the west side of the road at the place of the accident there was a level space of about 3 feet, covered with grass to the shoulder of the road, and from there there was a gradual descent to the westerly wall. From the westerly shoulder of the road to the wall the ground was not very even, and some low brush and cobblestones were there. It was not claimed that the trees were in a dangerous or decayed condition, or that they endangered or hindered public travel in any way except by their location. It did not appear that any complaint about the trees ever had been made to the commissioners, or that these officers had ever made any adjudication as to whether the trees were a nuisance to public travel, except such as may be implied from the fact that the trees were set out by their order, and in the place directed by one of their number. The extent to which the duty imposed by statute upon towns and cities to keep the streets reasonably safe and convenient for travelers thereon is modified by the fact that the objects complained of have been placed within the limits of the street by public authority, has been heretofore somewhat considered by the court. In Young v. Inhabitants of Yarmouth, 9 Gray, 386, it was decided that a town was not liable for damages sustained by a traveler upon a highway by reason of a telegraph post erected within the limits of the highway by an electric telegraph company, in a place prescribed by the selectmen of the town, under St.1849, c 93, § 3. Section 2 of that statute authorized any electric telegraph company to erect posts upon and along any highway provided the posts did not incommode the use of the highway. Section 3 made it the duty of selectmen of a town or the mayor and aldermen of a city to give the company "their writing specifying where the posts may be located, and the kind and height of the same," and it was further provided that after the erection of the posts the selectmen should have the power to direct any alteration in the location. The trial court instructed the jury that, "if they were satisfied that the telegraph post complained of was an obstruction, rendering the highway dangerous and unsafe for the purposes of ordinary travel, it would be such a defect in the highway as would render the town liable to any one injured thereby." This court held this instruction erroneous, and Mr. Justice Dewey, after stating that the selectmen do not act in this matter as the agents of the town, but as public officers, and that there is no appeal goes on to say: "The consequence of this necessarily must be that the location of the telegraph posts by the selectmen is conclusive upon all parties. The town cannot interfere, and remove them; and their existence upon the highway, if in exact conformity with the regulations prescribed by the selectmen, does not constitute any defect or want of repair in the highway for which the town can be held responsible in case of any injury thereby occasioned to any person traveling on such highway. If an improper location of telegraph posts has been allowed by the selectmen, the power is fully vested in the selectmen of the town to direct an alteration in such location, and thus obviate any inconveniences that may be found to exist to the traveler or the public generally. But this is not a matter which the town, in its corporate capacity, can...