Commonwealth v. Matthews , 122 Mass. 60 ( 1877 )

Ames, J.

We have no doubt of the power of the board of aldermen to establish such a regulation, under the authority given them by the Gen. Sts. c. 19, § 14. There is nothing, in the terms of that statute, that confines their powers to the making of rules as to the running of carriages in the streets; and it is manifest that the inconvenience occasioned by allowing them to stand at railroad stations, and other crowded places, might require equally minute regulations. The power to regulate is given in the most general terms, and we cannot say that the manner in which it is exercised is unreasonable.

There can be no doubt that the purpose and meaning of that section is to authorize the board of aldermen to prescribe the place at which the carriage is to stand. The person having it in charge may fairly be considered as with it, within the meaning of the rule, although for the time being he may be inside of the passenger station of a railroad, or in the act of soliciting passengers at a place out of sight of, and remote from, his carriage.

With regard to the testimony of the superintendent of such carriages, it appears that the book placed in his hands for his official guidance was prepared for his use by the board of aider-men, and purports to contain a list of the names of the owners of such carriages in the city, and a specification of the places assigned to them respectively. This, being the act of the board, was certainly competent evidence of an assignment of places, and might properly be considered by the jury as having a tendency to show that the defendant was not assigned to the place at which his carriage was found, but elsewhere.

The court rightfully refused to rule that the meaning of the regulation was merely that one carriage should not occupy the place which had been assigned to another. So narrow a construction would be contrary to the plain language of the section. The objection founded upon an alleged insufficiency of publication is also untenable. The rules had been published more than the one week required by the statute in two newspapers published in the city. Gen. Sts. c. 19, § 14.

There was no evidence of the laying out of Providence Street by the city, or of its formal acceptance; but enough was proved to make it certain that the city would be responsible for its eon dition, and liable in damages to any traveller upon it who should suffer any injury through any defect or want of repair, rendering it unsafe and inconvenient. It was shown to have been a common thoroughfare for the public for twenty years', and to have been known as Providence Street during that time. This evidence, though not conclusive, was admissible. Jennings v. Tisbury, 5 Gray, 73. Fall River Print Works v. Fall River, 110 Mass. 428. The instruction given to the jury, that upon this evidence the jury would have a right to infer that it had been located and dedicated to the public use as a street, could not be sustained, if the term “ dedicated ” were to be taken in its strictly legal and technical sense, as defined in Hobbs v. Lowell, 19 Pick. 405, and other cases in which that subject has been considered. We do not understand the presiding judge to have used the term in that sense. The words “located and dedicated” are not used disjunctively, as if to import that the way might have become a public street, either by location under the statute, or by dedication. On the contrary, the two terms are used in such a manner and connection as to indicate rather that they were substantially equivalent or synonymous expressions, and that the meaning of the instruction is the same as if the jury had been instructed that upon the evidence it would be competent for them to find that the way had been located and appropriated to the public use. It by no means imports of necessity a dedication by a private proprietor, within the meaning of the Gen. Sts. c. 43, § 82. Exceptions overruled.