Lawrence v. City of New Bedford

Knowlton, J. The only argument addressed to us in behalf of the plaintiff is a criticism of the charge of the presiding justice. We are of opinion that the jury could not have misunderstood the charge. It was, in substance, that where a street railway corporation has been lawfully authorized to construct and operate a railroad through the streets of a city, the existence of its tracks properly constructed, and the proper operation of its road, cannot be a defect in the streets for which the city is liable, even though they render the streets dangerous; and that, with this exception, the existence of a street railway does not affect the liability of a city for any defective condition of the street. The single expression in the charge stating the liability to be for defects “ which the city by proper care could have remedied without interfering with the lawful and proper operation of the railroad,” might have left the jury in doubt whether the city had a right to interfere with the regular running of cars if a defect could not otherwise be remedied; but, in referring to the same subject in two other parts of the charge, the expression was, “without unlawfully interfering with the operation of the railroad.” An illustration was also given which tended to show his meaning, and we are of opinion that, taking the whole charge together, the jury must have understood the law correctly. Exceptions overruled.