Dobbins v. West End Street Railway Co.

Holmes, J. This is an action against a street railway company for injuries caused by a defect in the highway between the railway track's, which was due to the defendant’s neglect of its obligation to repair, imposed by Pub. Sts. c. 113, § 32. The question is whether the defendant was entitled to the notice required by Pub;. Sts. c. 52, § 19, to be given to the “ county, town, place, or persons by law obliged to keep said highway . . . in repair,” as a condition to the right to sue it given by § 18. The difficulty is here. The obligation to repair the highway at the point where the accident happened is created by the beginning of Pub. Sts. c. 113, § 32. The liability to persons injured by a neglect of the duty may be derived either from the same section, or from Pub. Sts. c. 52, § 18. The former, dealing with other liabilities as well, has no requirement of notice. The latter, dealing only with the liability for a defect in the highway, has attached to it a requirement of notice in terms which cover all cases. But Pub. Sts. c. 52, §§ 18, 19, correspond to St. 1877, c. 234, §§ 2, 3, which were passed to amend the law as to liability for defects in highways, and have been declared in pretty broad terms not to affect the act of 1871, (c. 381, § 21,) from which § 32 of Pub. Sts. c. 113, is derived. Brookhouse v. Union Railway, 132 Mass. 178, 180. We regard the present question as left open by the last part of the decision cited. There is no reason for applying a peculiar rule to street railways'. The provisions of Pub. Sts. c. 113, § 32, deal in one sentence with liabilities for defects in the highway, and for other things as to which no notice would be required. The declaration considered in Brookhouse v. Union Railway was as broad as the statute. But when it appears that the cause of action is a defect in the highway, we are of opinion that the words of Pub. Sts. c. 52, § 19, should be given their natural construction and effect, and should not be narrowed artificially in order to create an abnormal exception. See Dickie v. Boston & Albany Railroad, 131 Mass. 516; Mack v. Boston & Albany Railroad, 164 Mass. 393. Exceptions overruled.