Hixon v. City of Lowell

Hoar, J. This case presents an extremely interesting question, affecting the duties and liabilities of towns and cities in regard to the repair and maintenance of highways. The action, so far as we are aware, is of novel impression in this commonwealth. By the Rev. Sts. c. 25, § 1, “ all highways, town ways, causeways and bridges within the bounds of any town ” are required to “ be kept in repair at the expense of such town, so that the same may be safe and convenient for travellers, with their horses, teams and carriages, at all seasons of the year.” By § 22 it is provided that “ if any person shall receive any injury in his person or property, by reason of any defect or want of repair, which has existed for the space of twenty four hours, in any highway, town way, causeway or bridge,” he may recover compensation therefor in the manner therein provided. And the same provision, with the exception of the limitation of twenty [62] four hours, is reenacted in the Si. of 1850, c. 5. We are now required to determine whether the facts reported disclose such a “defect or want of repair” in a highway as will create the liability of the town,contemplated by the statute. The instructions of the justice who presided at the trial in the court of common pleas were full, explicit and carefully guarded, and not open to any valid exception, if the case presented would authorize a verdict for the plaintiff. That learned judge was undoubtedly guided in his ruling by the decision of this court in the case of Drake v. Lowell, 13 Met. 292. In that case it was decided, that where an awning was erected by the owner of a building adjoining a highway, projecting over the sidewalk, and supported by posts standing between the sidewalk and the part of the street intended for carriages, and such awning was allowed by the city to remain in an unsafe condition, so as to endanger travellers passing in ihe highway beneath it "and exercising ordinary care, the city was responsible for an injury occasioned by the fall of the awning, when loaded with snow and ice after a storm, although the way was in all other respects safe and convenient for the public travel. In this action, the plaintiff seeks to extend the operation of the principles of that decision to a case where the only defect in the highway was the projection, from the roof of a building, of a mass of snow and ice, which had gradually collected upon it, and had slid and been pressed forward by the snow above it, until it overhung the travelled way and rendered passing beneath it dangerous. It may not be easy to perceive and state distinctly the difference between the two cases, in regard to the liability of the town; but we are all of opinion' that there is such a distinction, and that the facts which were proved on the trial will not sustain this action. In most cases, the town has discharged its duty, when it has made the surface of the ground over which the traveller passes sufficiently smooth, level and guarded by railings to enable him to travel with safety and convenience by the exercise of ordinary [63] care on his own part. There may be many causes of injury, to which he might be exposed in travelling upon such a way, which would not constitute any defect or want of repair in the way itself. In Vinal v. Dorchester, 7 Gray, 421, it was held, that a town was not responsible for an injury caused to the plaintiff by the running of the cars of a railroad company across a public highway; although the railroad was constructed in a manner not allowed by law, and the trains run thereon in a manner dangerous to the travellers on the highway. The town, if it has done its duty in making the way safe and convenient in all the proper attributes of a way, is not obliged to insure the safety of those who use it. The traveller may be subjected to inconvenience and hazard from various sources, none of which would constitute a “ defect or want of repair ” in the way, for which the town would be responsible. He might be annoyed by the action of the elements; by a hail storm, by a drenching rain, by piercing sleet, by a cutting and icy wind, against which, however long continued, a town would be under no obligation to furnish him protection. He might be obstructed by a concourse of people, by a crowd of carriages; his horses might be frightened by the discharge of guns, the explosion of fireworks, by military music, by the presence of wild animals ; his health might be endangered by pestilential vapors, or by the contagion of disease; and these sources of discomfort and danger might be found within the limits of the highway, and continue for more than twenty four hours, and yet that highway not be, in any legal sense, defective or out of repair. It is obvious that there may be nuisances upon travelled ways, for which there is no remedy against the town which is bound by law to construct and maintain the way. If the owner of a distillery, for example, or of a manufactory adjoining the street of a city, should discharge continuously from a pipe or orifice opening toward the street a quantity of steam or hot water, to the nuisance and injury of passers by, they must certainly seek redress in some other mode than by an action for a defective way. If the walls of a house adjoining a street in a city were erected in so insecure a manner as to be liable to fall upon [64] persons passing by, or if the eaves trough or water conductor was so arranged as to throw a stream from the roof upon the sidewalk, there being in either case no structure erected within or above the travelled way, it would not constitute a defect in the way. It is true that the present case finds that the snow had slid from the eaves, so that for more than twenty four hours before it fell it hung above the sidewalk; but we can see no good reason why the plaintiff should therefore have a claim against the city, any more than if it had fallen directly from the roof without the intermediate suspension. The liability of towns for injuries caused by defective ways is created by statute; and is not to be extended by construction beyond the limits which a reasonable interpretation of the statute establishes. We are of opinion that in Drake v. Lowell one of those limits was reached; and that where there is no structure, such as, if inconsistent with the safety of travellers, would be an encroaphment upon the street, and the way itself is properly constructed, the descent of snow or water from the roof of a building, whether sudden or gradual, does not give a right of action against the town to recover compensation for the injury which it may occasion. It is not, within the meaning of the law, a “ defect or want of repair in the highway.” New trial in this court.