Zacharer v. Town of Wakefield

• Decision Date: 14 May 1935
• Parties: ZACHARER v. TOWN OF WAKEFIELD, and three other cases.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

291 Mass. 90

195 N.E. 893

ZACHARER v. TOWN OF WAKEFIELD, and three other cases.

Supreme Judicial Court of Massachusetts, Middlesex.

May 14, 1935

Exceptions from Superior Court, Middlesex County; Greenhalge Judge.

Separate actions of tort by Joseph J. Zacharer, p. p. a., by Stephanie A. Zacharer, by Eliane Moloney, p. p. a., and by John B Moloney, p. p. a., against the Town of Wakefield, which were tried together. Verdicts for plaintiffs, respectively, in the sums of $1,000, $775, $25, and $500, and defendant brings exceptions.

Motion to dismiss exceptions denied, exceptions sustained, and judgment in each case for the defendant.

Thomas M. A. Higgins, of Lowell, for plaintiffs Eliane and John B. moloney.

James J. Bruin and F. C. Zacharer, both of Lowell, for plaintiffs Joseph J. and Stephanie A. Zacharer.

M. E. S. Clemons and M. Gardner Clemons, both of Wakefield, for defendant.

LUMMUS, Justice.

The plaintiff Stephanie A. Zacharer, on the fine morning of August 2, 1932, was operating on Lowell street in Wakefield at a speed of twenty-five or thirty miles an hour an automobile in which were riding her two children, the two Moloney children, and two others. Suddenly, she testified, the right wheel seemed to get caught in the road, the steering wheel jerked out of her hand, and the automobile ran off the road to the right and into a telegraph pole located three feet from the asphalt surface of the road, which was eighteen feet wide. At the edge of the asphalt was a shoulder of gravel three or four inches lower than the asphalt.

A child who was one of the passengers testified that one of the Zacharer children asked for a sandwich, the operator reached back to get it, and then the accident happened. The operator testified more favorably to the cases of all the plaintiffs. She attributed the accident to the ‘ ragged edge’ of the asphalt adjoining the gravel shoulder. In many places the edge of the asphalt had broken away, because of traffic and the weather, leaving depressions of various depths up to three and one-half inches and of various widths up to six inches or a foot. There were also depressions towards the middle of the road, two to six inches deep, and six inches to a foot wide, but there was no evidence that any of these had to do with the accident.

The testimony, as well as common knowledge, shows that edges similar to those described are common upon roads having an asphalt surface and gravel shoulders. Photographs taken on the afternoon of the accident disclosed nothing uncommon or apparently dangerous. It is not to be expected that operators of automobiles will make a practice of driving along the very edge of the asphalt. To impose liability upon a town, an accident must be caused by ‘ a defect or a want of repair * * * in or upon a way’ which ‘ might have been remedied by reasonable care and diligence on the part of the * * * town.’ G. L. (Ter. Ed.) c. 84, § 15. The duty to repair is merely a duty to keep the way reasonably safe and convenient for general travel. Dupuis v Billerica, 260 Mass. 210, 214, 157 N.E. 339; Beaumier v. Heath, 282 Mass. 312, 315, 185 N.E. 6. Perfection is not required. A majority of the court think that no defect, continuing to exist by negligence of the town,...