Wershba v. City of Lynn

• Decision Date: 02 June 1949
• Citation: 324 Mass. 327,86 N.E.2d 511
• Parties: KARL O. WERSHBA v. CITY OF LYNN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

324 Mass. 327

86 N.E.2d 511

KARL O. WERSHBA v. CITY OF LYNN.

Supreme Judicial Court of Massachusetts, Essex.

June 2, 1949

February 9, 1949.

Present: QUA, C.

J., LUMMUS, RONAN WILKINS, & SPALDING, JJ.

Way, Public defect, traveller, nuisance, tree, ownership. Nuisance. Tree. Municipal Corporations, Liability for tort, Tree, Nuisance Liability as landowner. Practice, Civil, Ordering verdict Exceptions: what questions open.

A radio repair man, who, while sitting on the running board of an automobile parked on a public way in a city in front of his shop and

"looking to see what the trouble was" with a radio he had been engaged to examine, had been interrupted by a rain storm and had entered the automobile to wait until the storm subsided, was not a traveller on the way so as to be entitled to maintain an action against the city under G.

L. (Ter. Ed.) c. 84, Section 15, for personal injuries caused by the falling upon the automobile of a defective public shade tree located on the way.

On a general exception by a plaintiff to the ordering by the trial judge on his own motion of a verdict for the defendant on a stated ground, it was open to this court to sustain the order and overrule the exception on a ground other than that stated by the trial judge.

One, not a traveller on a public way, injured by the falling of a decayed and defective public shade tree located within the limits of the way, could not recover from the municipality on the ground that the tree was a nuisance in the absence of proof that the municipality was the owner of the land on which the tree stood: mere control of the way without ownership did not establish a basis of liability.

TORT. Writ in the Superior Court dated December 28, 1946. The defendant's motions described in the opinion were allowed by Brogna, J. A motion by the plaintiff to amend was denied by Dowd, J., before whom the action then was tried.

I. Bloch, for the plaintiff.

P.

F. Shanahan, City Solicitor, for the defendant.

SPALDING, J. This is an action of tort in which the plaintiff seeks to recover compensation from the defendant city for personal injuries sustained by him when a public shade tree located on a public way fell on an automobile of which he was an occupant. The plaintiff's declaration contained two counts. The first is based on the statute (G. L. [Ter. Ed.] c. 84, Sections 1 15) and alleges a defect in the way; the second alleges a nuisance.

Prior to the trial of the case the defendant filed a motion to reduce the ad damnum (which was $20,000) to $4,000, and a motion to strike out the second count. Both motions were allowed. When the case came on for trial the plaintiff presented a motion to amend the declaration by adding a new count alleging nuisance. It differed from the original count in that it set forth the cause of action in more detail and described the locus of the public shade tree in substance as on a public highway owned in fee by the plaintiff's landlord "subject only to the public easement of passage." The motion was denied. The plaintiff then went to trial on the first count. After an opening was made, the plaintiff introduced as an exhibit a notice which he had sent to the defendant purporting to give the time, place, and cause of the injury, but the judge ruled that the notice was insufficient and ordered a verdict for the defendant. The case comes here on the plaintiff's exceptions to the allowance of the motion to strike out the second count, the allowance of the motion to reduce the ad damnum, the denial of the motion to amend the declaration, and the ordering of a verdict for the defendant.

A summary of the relevant facts stated in the opening is as follows: The plaintiff operated a radio repair shop at 245 Summer Street in the city of Lynn. Summer Street is a public way and is in a densely populated section of the city which is used principally for business. On June 8, 1946, one Wells drove his automobile to the plaintiff's shop in order that the plaintiff might look at the radio

"which was not working just right." Wells parked his automobile against the curb in front of the plaintiff's shop and the plaintiff sat on the running board, and "began looking to see what the trouble was." While the plaintiff was so engaged a rain storm came up and the plaintiff and Wells got into the automobile to wait until the storm subsided. The rain increased and the wind began to blow. The plaintiff suggested to Wells that they ought not to remain in the automobile, and, as the plaintiff was about to open the door in order to get out, a tree, which had been broken off by the wind, crashed through the roof of the automobile and struck the plaintiff. The tree, which was a large one, was a public shade tree and stood on the public way. There were large cavities in the base of the tree, one of which "went right through the tree." "The tree was full of rot. There was only an inch or two of healthy wood left." Children were in the habit of building fires in the tree. At various times "whenever there was any wind at all" branches had broken off. It had been in this condition for at least nine months or a year and during this period "was apt to be blown over by any kind of a wind." The officials of the defendant were aware of the tree's condition but never did anything about it.

On the facts stated in the opening, which must be taken as true (Grace v. Jordan Marsh Co. 317 Mass. 632), the plaintiff was injured by reason of a "defect . . . in or upon a way . . . [which] might have been remedied by reasonable care and diligence" on the part of the defendant. G. L. (Ter. Ed.) c. 84, Section 15. A shade tree within the limits of a highway may because of its decayed or unsound condition be a defect. Chase v. Lowell, 151 Mass. 422 . Wright v. Chelsea, 207 Mass. 460 . Donohue v. Newburyport, 211 Mass. 561 , 569, 570. See Valvoline Oil Co. v. Winthrop, 235 Mass. 515 , 520, 521. Compare Andresen v. Lexington, 240 Mass. 517 . And clearly, according to the opening, the defect here had been in existence for a period sufficient to constitute a reasonable notice to the defendant. G. L. (Ter. Ed.) c. 84, Section 15. Donohue v. Newburyport, 211 Mass.

561, 569, 570. Bagdikian v. Worcester, 318 Mass. 707 , 708. But since Sections 15 and 1 of c. 84 must be read together (Hurlburt v. Great Barrington, 300 Mass. 524 , 526), the duty imposed on a city or town under these sections is to maintain the highways "so that they may be reasonably safe and convenient for travelers." Consequently to recover under the statute a plaintiff must prove that he was a traveller on the way at the time of his injury. Richards v. Enfield, 13 Gray, 344, 346. Blodgett v. Boston, 8 Allen, 237. In the case last cited it was said by Bigelow, C.J., at page 240, "We certainly do not think that any narrow or restricted signification should be given to the word `traveller,' as used in the statute. It may well embrace within its meaning, as applied to the subject matter, every one, whatever may be his age or condition, who has occasion to pass over the highway for any purpose of business, convenience or pleasure. . . . The highway is to be kept safe and convenient for all persons having occasion to pass over it, while engaged in any of the pursuits or duties of life. If this be not the limit beyond which the duty and the corresponding liability of cities and towns . . . do not extend, we are unable to see where the line can be drawn. And yet it is plain that there must be some such limit. A town cannot be held responsible for every case of damage to person or property which may happen by reason of a defect in a highway, without regard to the use to which it was appropriated at the time of the accident by the person injured. Suppose, for example, a juggler or gymnast should occupy a portion of a street . . . to exhibit his feats of skill or agility and strength. He certainly could not be regarded in the light of a traveller while so using the highway, nor could he claim damages of a city or town for injuries sustained by him in his person or property during his performance, although they might have been occasioned in whole or in part by a defect in the highway."

In numerous cases under Sections 1 and 15 the question has arisen whether the plaintiff at the time he was injured was using the highway as a traveller. It has been held that persons using the highways for travel who stopped momentarily for some other purpose were nonetheless travellers, or at least could be found to be. Hunt v. Salem, 121 Mass. 294 (stopping to look in store window). Gulline v. Lowell, 144 Mass. 491 (playful act by child while travelling). Bliss v. South Hadley, 145 Mass. 91 (stopping to watch boys at play). Smethurst v. Barton Square Independent Congregational Church, 148 Mass. 261, 266 (stopping to unload team). Donohue v. Newburyport, 211 Mass. 561 , 569 (pausing to watch removal of a tree). O'Donnell v. North Attleborough, 222 Mass. 591 , 594 (stopping to wait for companions). On the other hand, it has been held that one using a highway solely for play and not as an incident to travel is not a traveller. Blodgett v. Boston, 8 Allen, 237. Tighe v. Lowell, 119 Mass. 472 . Harris v. Boston & Maine Railroad, 211 Mass. 573, 575. McKenna v. Andreassi, 292 Mass. 213 , 217.

In the light of our decisions we are constrained to hold that the plaintiff was not a traveller on the highway at the time he was injured. It appears that he was sitting in the automobile not as an incident of travel but because he sought shelter from the rain which had interrupted his work. His presence on the highway was solely for a purpose other than travel. The liability of a municipality for injuries sustained by reason of a want of repair of a way is wholly...