Neff v. Inhabitants of Wellesley , 148 Mass. 487 ( 1889 )

Knowlton, J.

To determine whether the defendant town is liable for the negligence of Crawford in driving its team, we must answer two questions: First, Was the business in which Crawford was employed such that engaging in it would subject a city or town to liability for negligence in conducting it? Secondly, Was he a servant of the town, or was he a representative of a board of public officers acting independently, merely in the performance of a public duty ?

It is a general rule, that a town is not liable for the negligence of its agents or servants in a matter in which it has no interest, and which has no direct or natural tendency to injure any individual in person or property, and which it has in charge solely in the performance of a public duty imposed upon it by law. Mill v. Boston, 122 Mass. 344. Tindley v. Salem, 137 Mass. 171, 172. Whether this rule should be held to apply to the use of a farm for no other purpose than the support of paupers who are a charge upon the town, it is unnecessary to decide. For the jury have found that paupers whose support was chargeable to another town, and to the Commonwealth, were boarded for pay upon the defendant’s farm, and that persons employed to work upon the highways were also boarded there, and that horses were kept there principally for use in repairing the highways. When property is used or business is conducted by a town principally for public purposes, under the authority of the law, but incidentally and in part for profit, the town is liable for negligence in the management of it. Oliver v. Worcester, 102 Mass. 489. Worden v. New Bedford, 131 Mass. 23. Tindley v. Salem, 137 Mass. 171.

This case clearly does not fall within the rule which we have stated.

Nor can it be held that the use of the farm by the defendant was illegal, so as to exonerate the town from liability on account of it. It was not an appropriation of public money to a commercial enterprise conducted primarily for profit. The income received from the farm was, apparently, incidental to the use of it in the support of paupers having a residence in the town, and in boarding horses and men employed upon the highways which the town maintained. A city or town may make any reasonable provision for the support of paupers, or for sustaining other public burdens imposed upon it, and for that purpose may manage a farm which produces more crops than are needed for the food of the paupers, and may sell or exchange the surplus. It may transact business outside of the authority expressly given it, if the business is incidental to the performance of its public duties.

Overseers of the poor are public officers, who commonly act under the authority of the law, and not as agents of a town. But in some matters they may represent the town as its agents. New Bedford v. Taunton, 9 Allen, 207. They have the care and custody of the paupers in their respective cities and towns, and are to see that they are suitably relieved, supported, and employed; but the city or town is to direct the manner and provide the means of supporting its paupers. Pub. Sts. c. 84, § 2. If a town sees fit to buy a farm, and cultivate it in connection with an almshouse, there is nothing in the statute which gives the overseers of the poor a right to manage it without authority from the town.

In the case at bar, the same persons held the offices of overseers of the poor, highway surveyors, and selectmen. In one capacity they had the care and oversight of the paupers; in another, of the roads and bridges; and in the third, of many of the other prudential affairs of the town. The farm was used in part for the support of the paupers, of whom they had charge as overseers of the poor; in part for a purpose which was connected with the maintenance of the highways, which were in charge of the highway surveyors; and in part for the production of income, a use which was outside of the express authority of any board of public officers, and was under an assumption, of authority that seems to have been approved and ratified by the town. The three persons who managed the farm in the interest of the town for these several purposes cannot be deemed to have been acting merely as a single board of public officers, but they represented the defendant in different capacities, such as to make them in that business the defendant’s agents. The facts which the jury were required to find in order to return a verdict for the plaintiff conclusively established the town’s liability for Crawford’s acts, and the defendant’s requests for instructions upon this point were rightly refused, and the' instructions given were sufficiently favorable to the defendant.

It is not, under all circumstances, negligence for a blind person to walk unattended upon a public street. Smith v. Wildes, 143 Mass. 556. Sleeper v. Sandown, 52 N. H. 244. There was evidence proper for the consideration of the jury upon the question whether the plaintiff was in the exercise of due care.

The ninth and tenth requests for rulings were rightly refused, and the jury were properly instructed upon the subject to which the requests referred. The plaintiff was only bound to use ordinary care; but in determining what was ordinary care the jury were called upon to consider his blindness and other infirmities, and all the circumstances which bore upon the question what care was reasonably necessary to insure his safety.

The eleventh request assumed, as a hypothesis merely, that the plaintiff could have ascertained “that a team was approaching, and its direction”; it called for an instruction as to the effect of only a part of the evidence bearing upon a single fact in issue, and the judge might properly refuse it. McDonough v. Miller, 114 Mass. 94. Exceptions overruled.