Rochefort v. Inhabitants of Attleborough

Alleh, J. The ground on which the plaintiff seeks to maintain his case is, that the culvert was built in an improper manner, so that the earth above it was likely to subside and make a hole in the road; and that under these circumstances greater diligence was required, on the part of the town authorities, in guarding against injury or damage to travellers than otherwise might have been sufficient. Olson v. Worcester, 142 Mass. 536. There was, however, no evidence that the hole which caused the injury to the plaintiff had actually existed for any such length of time before the accident as to make the town chargeable with notice thereof, and there had been no hole in the road at that place for more than a year previously, although there was much heavy travel over the road, and one of the plaintiff’s witnesses went so far as to testify that he had himself driven heavy loads across there thousands of times. Under such circumstances, although the culvert was not so well built as to be likely to stand many years without repairs, it could not properly be held that the danger of a subsidence of the road was so imminent as to warrant holding the town chargeable with actionable neglect. It would throw too heavy a burden upon towns for the court, without more explicit legislation looking to that end, to hold them responsible merely because a road is so constructed that a defect therein of this character is likely to occur in the remote future. There was no apparent probability that the culvert would break down all at once, and without previous warning, thus making it dangerous to pass over it at all. McGraffigan v. Boston, 149 Mass. 289. Adams v. Chicopee, 147 Mass. 440. Hanscom v. Boston, 141 Mass. 242. Post v. Boston, 141 Mass. 189. In the opinion of a majority of the court, the entry must be, Judgment on the verdict.