Post v. City of Boston , 141 Mass. 189 ( 1886 )

C. Allen, J.

Under the Gen. Sts. e. 44, § 22, a person who received injury through a defect in a highway might recover damages of the town by law obliged to repair the same, if such town had reasonable notice of the defect, or if the same had existed for the space of twenty-four hours previously to the occurrence of the injury. Under this statute, it was held that it was the intention of the Legislature to limit the liability to cases where the precise defect which caused the injury was known to the town, or had existed for twenty-four hours; and that, if the defect had not existed for twenty-four hours, the town could not be held liable on the ground that its agents had constructed or repaired the way so negligently that it was reasonable to suppose that such a defect would be produced. Monies v. Lynn, 121 Mass. 442, 444. And, in a later stage of the same case, it was declared that a liability to become defective is not in itself a defect. 124 Mass. 165, 171. See also Hutchins v. Littleton, 124 Mass. 289. Under that statute, and earlier ones to the same effect, it had often been held that the liability of the town became absolute if the defect had existed for twenty-four hours; and that the town could not exonerate itself by proof of due diligence on its part, George v. Haverhill, 110 Mass. 506. Bodwell v. North Andover, 110 Mass. 511, n.

The St. of 1877, c. 234, which was an act to amend the above chapter of the General Statutes, made two changes in the section referred to. In the first place, it did away with the absolute liability imposed on towns where the defect had existed for twenty-four hours, and exonerated them from liability in all eases where there had been no lack of proper diligence on their part. Rooney v. Randolph, 128 Mass. 580. Hayes v. Cambridge, 136 Mass. 402, and 138 Mass. 461. And it substituted therefor a liability for an injury or damage received through á defect which might have been remedied, or an injury or damage which might have been prevented by reasonable care and diligence on the part of the town, if such town had reasonable notice of the defect, or might have had notice thereof by the exercise of proper care and diligence on its part, although the defect had not existed for any particular length of time, and- although the town had 'no actual notice thereof. This statute, as reenacted in the Pub. Sts. a. 52, § 18, is now in force. It has essentially modified the rule as declared in Monies v. Lynn, above cited, which is the principal reliance of the defendant in the present case. The duty is now cast upon towns of using reasonable care and diligence to remedy defects, and to prevent damage or injury to persons and property by guarding against the effects of causes which are likely to produce such defects. Flanders v. Norwood, ante, 17.

The evidence in the present case was sufficient to show that the cover of the cesspool was liable to come off, and to float away, from the accumulation of water in such rain-falls as often occur, and such as the jury would be warranted in finding that reasonable care, diligence, and prudence should guard against. The case is thus brought directly within the existing statute, and, taking the instructions as a whole, the case was fairly left to the jury.

It is indeed contended, on the part of the plaintiff, that the present case is distinguishable from Monies v. Lynn, and that the verdict might well be supported as falling within the decision in Hodgkins v. Rockport, 116 Mass. 573. But, in view of the change in the legislation, it becomes unnecessary to consider this ground of contention.

The evidence that the cover had been off on other occasions within the year prior to the accident was competent, as bearing on the question whether the defect might have been remedied, or the injury prevented, by reasonable care and diligence on the part of the city.

Exceptions overruled.