Graham v. City of Boston

Allen, J. The only question reported in these cases for our decision is whether there was evidence to justify the finding of the court that the plaintiffs or any of them were travellers, [77] within the meaning of the statute respecting public ways. Pub. Sts. c. 52, § 1. It was held in Blodgett v. Boston, 8 Allen, 237, that a person who is using a highway simply for the purpose of play is not to be deemed a traveller. The court dwelt upon the fact that the plaintiff in that case was using the street for a purpose entirely foreign to any design or intent to pass or repass over it for the purpose of travel, and confined the expression of opinion to that precise case. In the present case, the plaintiffs had been upon Warren Bridge looking at the search lights on a man-of-war, and were on their way to their homes in Charlestown, a considerable distance from the bridge, playing tag as they went. There was testimony tending to show that just before the time of the injuries they had stopped to get breath, that Graham walked away from the rest, that he was not running at the time nor was any one in pursuit of him, but.that he was walking straight ahead, when he came in contact with the wire; and that, upon hearing his outcry and seeing him in trouble, Harkins went to his assistance, and the others went to help Graham and Harkins. There is not much difficulty in respect to the plaintiffs besides Graham. The evidence tended to show that they were then engaged in trying to render assistance, and were not pursuing the game. As to Graham the case is closer; but there was evidence that he was actually on his way home, and that he was walking at the moment of receiving the injury. He was rightfully travel-ling home on the highway. He was not using the highway merely for the purpose of play, but also and perhaps principally for the purpose of getting home. In Tighe v. Lowell, 119 Mass. 472, this element was lacking. Amusing himself as he went is not necessarily inconsistent with his being a traveller. Grulline v. Lowell, 144 Mass. 491, 495. Bliss v. South Hadley, 145 Mass. 91. Hunt v. Salem, 121 Mass. 294. It seems to a majority of the court that upon the evidence the finding of the court as to all df the plaintiffs may be supported. Judgments for the plaintiffs.