Whitcher v. City of Somerville

C. Allen, J. A bridge under a highway, within the meaning of the Pub. Sts. c. 112, § 128, is a bridge for travellers to use as a part of the highway, crossing the railroad over the level thereof. Cambridge v. Charlestown Branch Railroad, 7 Met. 70, 72. Sawyer v. Northfield, 7 Cush. 490. Titcomb v. Fitchburg Railroad, 12 Allen, 254. White v. Quincy, 97 Mass. 430. Rev. Sts. c. 39, § 72. Gen. Sts. e. 63, § 61. St. 1874, c. 372, § 95. In the present case, the railroad crossed the highway, over the level thereof, by means of the bridge, and the highway was lowered for the purpose of having the railroad pass over it. The only question is, whether that portion of the highway which was so lowered is included in the approaches to the bridge, within the meaning of the Pub. Sts. c. 112, § 128, so that the railroad company is liable for an accident happening thereon, and the city exonerated. The approaches to a bridge are the ways at the ends of it, which are a part of the bridge itself, or are appendages to it. This was quite plain under the St. of 1846, c. 271, § 1. By the common law, the duty to keep a bridge in repair carried with it the duty to keep in repair, as a part of the bridge, the highway at each end of it, for a space of three hundred feet. The King v. West Riding of York, 7 East, 588; S. C. in House of Lords, 5 Taunt. 284. This limit of space has not been adopted in this Commonwealth, but the highways at the ends of a bridge have been recognized, as, and called, the approaches to it, in several decisions. Commonwealth v. Deerfield, 6 Allen, 449, 455. Titcomb v. Fitchburg Railroad, 12 Allen, 259. Rouse v. Somerville, 130 Mass. 361. This was the meaning in the St. 456 of 1846, c. 271, § 1, and, when taken with the context, is the meaning in the Pub. Sts. c. 112, § 128. . As the bridge in the present case was not a part of the highway, but was a part of the railroad track, and crossed the highway over the level thereof, the approaches to it did not include any part of the highway, and the city was not relieved of its liability to keep in repair that portion of the highway where the accident happened. Exceptions overruled.