Howard v. City of Worcester

C. Allen, J. The city contends that, even assuming that Kenney was its servant in such a sense that ordinarily it might be responsible for his acts or his negligence, it is nevertheless exempt from responsibility to the plaintiff in the present case by reason of the nature of the work which it was carrying on, namely, the construction of a schoolhouse for public use. [427] It was held in the familiar case of Hill v. Boston, 122 Mass. 344, that a city is not responsible in damages to a child attending a public school in a schoolhouse provided by the city, under the duty imposed upon it by general laws, for an injury sustained by the child by reason of the unsafe condition of a staircase in the building. In Bigelow v. Randolph, 14 Gray, 541, a similar doctrine was applied where a scholar received an injury from a dangerous excavation in the schoolhouse yard. The doctrine was reiterated in Sullivan v. Boston, 126 Mass. 540. It has also been applied to other public grounds, like Boston Common. Oliver v. Worcester, 102 Mass. 489. Steele v. Boston, 128 Mass. 583. Clark, v. Waltham, 128 Mass. 567. Veale v. Boston, 135 Mass. 187. On the same principle, a city was declared to be exempt from responsibility for a personal injury received in consequence of the defective condition of a public hospital. Benton v. Boston City Hospital, 140 Mass. 13. In other States a similar rule of exemption has been adopted in reference to schoolhouses and other public buildings maintained solely for public use and service. Wixon v. Newport, 13 R. I. 454, schoolhouse. Eastman v. Meredith, 36 N. H. 284, town-house. Hamilton Commissioners v. Mighels, 7 Ohio St. 109, court-house. Freeholders of Sussex v. Strader, 3 Harrison, 108, 121, dictum of Hornblower, C. J., as to court-houses and jails. The principle on which this exemption from responsibility rests is, that, in the various instances referred to, the building was erected or the grounds were prepared solely for the public use, and with a sole view to the general benefit, and under the requirement or authority of general laws. In such cases, in the absence of any statute which directly, or by implication, gives a private remedy, no action lies in favor of a person who has received an injury in consequence of a negligent or defective performance of the public service. The cases heretofore cited relate to injuries received after the completion of the work. It makes no difference, however, if the injury is caused by a negligent act done in the direct performance of the service. Hafford v. New Bedford, 16 Gray, 297. Fisher v. Boston, 104 Mass. 87. Tindley v. Salem, 137 Mass. 171. Lincoln v. Boston, 148 Mass. 578. The plaintiff seeks to establish a distinction on the ground that her injury was received outside of the limits of the public [428] work; relying on an expression in the judgment in Hill v. Boston, above cited, at page 358, and on the various decisions where cities and towns have been held responsible for injuries caused by or in the course of the construction of roads and bridges, by blasting rocks, setting back water, etc.; for example, Lawrence v. Fairhaven, 5 Gray, 110; Deane v. Randolph, 132 Mass. 475; and Waldron v. Haverhill, 143 Mass. 582. These cases, however, rest on grounds which take them out of the general rule, and in the last resort it must probably be considered that, taking all the statutes together which relate to the construction of roads and bridges, it is to be inferred that the Legislature intended to recognize the existence of a liability for the consequences of negligence in the performance of the work. In the present case, the service in which the city was engaged was purely for the benefit of the public, and we think the case falls within the general rule which exonerates it from responsibility for the consequences of its servant’s negligence. The servant himself may be responsible ; the city is exempt. See also Neff v. Wellesley, 148 Mass. 487; Curran v. Boston, 151 Mass. 505; Bates v. Westborough, 151 Mass. 174. JExceptións sustained.