Igo v. City of Cambridge

Braley, J. If it became necessary for the water department of the defendant city either to lay or to repair a water pipe in the public way over which the plaintiff was driving when injured, the jury could find that to open a trench of the dimensions stated, without taking any precautions to warn travellers of the danger, rendered the street defective and unsafe. Norwood v. Somerville, 159 Mass. 105. Torphy v. Fall River, 188 Mass. 310, 313. R. L. c. 51, § 1. To maintain the action, the plaintiff under R. L. c. 51, § 18, must prove that the defect was the sole cause of his injuries. The city had authorized the defendant company to erect a temporary engine house on a portion of the street nearly opposite the excavation, which narrowed the roadway, and as the plaintiff’s team was passing the engineer started the engine. The escaping steam, apparently discharged into the street, so frightened the horses that they began to run, and while uncontrollable the wagon plunged into the trench, when the plaintiff was thrown from his seat to the ground. If the loss of control could have been found to have been only momentary, and instantly would have been regained if the wagon had not come in contact with the defect, the plaintiff would have been entitled to recover, as the city does not contend that he was careless or that it did not have notice of the defect. Babson v. Rockport, 101 Mass. 93. But, it having been undisputed that the horses were beyond his control when the accident happened and but for their fright the wagon would not have fallen into the trench, the verdict for this defendant was rightly ordered. Titus v. Northbridge, 97 Mass. 258. Horton v. Taunton, 97 Mass. 266. Fogg v. Nahant, 98 Mass. 578; S. C. 106 Mass. 278. Lynn Gras & Electric Co. v. Meriden Fire Ins. Co. 158 Mass. 570, 576. Feeley v. Melrose, 205 Mass. 329. [576] The defendant company, outside of the portion occupied by its engine house under the permit, had no exclusive use of the street, which had not been closed to public travel. If permitted for its own convenience and benefit to maintain and operate the engine, yet it knew or could be found to have known that the street was being concurrently used by the public. It is common knowledge that horses are likely to become restive and perhaps unmanageable from fright caused by the hissing sound of emitted steam, and the defendant was required in the operation of the engine to use reasonable care not to frighten passing teams. It was for the jury and not for the court to determine, whether the defendant’s engineer, who seems to have had convenient facilities for observation, acted with reasonable care in starting the engine before he ascertained whether a team was passing in such proximity that its operation might imperil the safety of travellers. If the jury found that the engineer was negligent, the defendant was responsible for the accident, which as we have said would not have happened if the horses had not been so frightened as to pass from the plaintiff’s control. Butman v. Newton, 179 Mass. 1. The plaintiff, whose horses previously had not shown signs of fright, undoubtedly was aware that the trench was on his right, with the engine house on his left, but he also knew that the remaining portion of the street was sufficient in width for his team to pass safely, under visible conditions, and he had no reason to anticipate the defendant’s negligence. It could not be ruled as matter of law that he acted carelessly. Stoliker v. Boston, 204 Mass. 522, 534, and cases cited. In accordance with the terms of the report, judgment for the defendant is to be entered on the verdict in the first case, but in the second case the plaintiff is to have judgment for the sum of $1,500. So ordered.