McDougall v. City of Salem , 110 Mass. 21 ( 1872 )

Chapman, C. J.

By the action of the sounty commissioners of Essex, under the St. of 1868, e. 309, the bridge in question became a highway. The city of Salem was under no obligation to keep it in repair except such as was created by statute. They were bound by the Gen. Sts. c. 44, § 1, to keep it in such repair that it would be safe and convenient for travellers. Their liability to pay damages was created by § 22. But the statute made them liable to travellers only. Stickney v. Salem, 3 Allen, 374. Blodgett v. Boston, 8 Allen, 237. The plaintiff was not a traveller on the highway. The wings of the draw were raised in order that the vessel which he was assisting to navigate might pass through, and he stepped upon the elevated wing when it was in no condition to be used for travel, in order that he might free the rigging of the vessel. This business had no connection with travelling, and the statute does not apply to it. Nor had the defendants any beneficial interest in the bridge derived from the receipt of tolls or compensation for allowing vessels to pass, so as to make them liable to the plaintiff as a navigator, even if we were to assume that the draw was kept in an improper condition. The principle stated in Oliver v. Worcester, 102 Mass. 489, does not apply to the case. Judgment for the defendants.