Inhabitants of Woburn v. Boston & Lowell Railroad , 109 Mass. 283 ( 1872 )

Ames, J.

The question presented upon this report has been disposed of by numerous decisions. Lowell v. Boston Lowell Railroad Co. 23 Pick. 24. Lowell v. Short, 4 Cush. 275. Boston v. Worthington, 10 Gray, 496. Milford v. Holbrook, 9 Allen, 17. Woburn v. Henshaw, 101 Mass. 193. West Boylston v. Mason, 102 Mass. 341. The existence of a certain state of facts, pointed out by the statute, is proof of constructive neglect on th» part of the town. If those facts existed, the liability of the town, is not at all affected by the question of its actual diligence or negligence. Billings v. Worcester, 102 Mass. 329. The case finds, that the defendants had taken into their own hands the business of removing the post, in order to widen the space for the passage of the building; that in so doing they had made the excavation, which was the cause of the accident; and that they had neglected for a number of days, after the building had passed, to replace things in their former condition. The plaintiff had a right to suppose that, as the defendant corporation was dealing with its own property, it would replace the post and fill up the excavation. Under such circumstances, the parties cannot be said to be in pari delicto. It is true that the plaintiffs thereby became liable to the party who suffered injury in consequence of this neglect; but they were under no obligation to shield the defendants from the consequence of their own omissions. The decisions in Swansey v. Chace, 16 Gray, 303, and other cases above cited, fully sustain the position that the party which placed the obstruction in the highway cannot resist the claim of the town to indemnity for damages paid, on the ground that the neglect of the town to remove the obstruction contributed to the injury.

Judgment on the verdict for the plaintiff».