Valvoline Oil Co. v. Inhabitants of Winthrop

Crosby, J. This is an action to recover for damages to the plaintiff’s wagon caused by the top of it coming in contact with the limb of a tree growing within the limits of Hermon Street, a public way in Winthrop. The tree is on the sidewalk. The street at that point is "twenty-six feet wide from curb to curb and forty feet wide from sidewalk to sidewalk." The outer edge of the trunk of the tree is within six inches of the roadway, over which no portion of the trunk extends. The limb in question reaches over the roadway and grows from the trunk about seven feet from the ground. The circumference of the trunk at its base is approximately six feet four inches, and of the limb at the trunk, three feet six inches. The tree is about fifty years old, and at the time of the accident was in sound, healthy condition, including the — 519 — limb in question. “It is not claimed by the defendant that the tree . . . was set out by a road commissioner or by public officials,” accordingly the decision in Washburn v. Easton, 172 Mass. 525, is not applicable. It is agreed that the plaintiff duly notified the defendant of the time, place and cause of the accident. The laws relating to public shade trees were codified and amended by St. 1915, c. 145. Under that statute all trees within ^ the limits of a highway are public shade trees. § 2. Except as provided in § 5, public shade trees shall not be trimmed nor removed in whole or in part by any person other than the tree warden or his deputy, except upon a permit in writing from the tree warden, nor shall they be cut down nor removed by the tree warden or his deputy or other person without a public hearing after notices posted as prescribed by the statute and after authority granted by the tree warden therefor. Under § 5, if ordered by the mayor and aldermen, selectmen, road commissioners or highway surveyor, it is the duty of the tree warden to trim or cut down trees and bushes if they shall be deemed to obstruct, endanger, hinder or incommode persons travelling on the highway. It is further provided in § 5, that “Nothing contained in this act shall prevent the trimming, cutting or removal of any tree which endangers persons travelling on a highway. ...” The part of § 5 last quoted, cannot be construed as authorizing public officials other than tree wardens and their deputies to trim or remove a tree which endangers persons travelling on a highway. The care, maintenance, trimming and removal of shade trees in highways have been the subject of legislative action for several years, and their control is vested in the tree wardens in cities and towns of the Commonwealth, except so far as it is imposed on other officials by the charters of cities, by other legislative enactment, or by the ordinances of cities, or upon such officials as the city government shall designate for that purpose. The result of the legislation on this subject has been to place practically the entire control of such trees in tree wardens, and to leave little, if any, authority in t other municipal officers. While the statute (§5) provides that nothing in the act shall prevent the trimming, cutting or removal of a tree that endangers persons travelling upon a highway, this language must be construed in connection with other sections of the statute, including § 3. We construe the language in ques — 520 — tian to mean, that if a tree endangers persons travelling upon a highway it may be trimmed, cut, or removed by a tree warden or his deputy without notice and hearing, but no other person is empowered so to act. It follows that the officials named in § 5 may order the tree warden to trim or cut down a tree if they believe it endangers, hinders or incommodes persons travelling on the highway, and it is the duty of the tree warden to carry out the order so given; but the power of the officials named is limited to ordering it to be removed by the tree warden. Under earlier statutes it was held that a surveyor of highways had no authority summarily to cut down a shade tree standing in the highway which was in a defective and dangerous condition, but under Pub. Sts. c. 52, § 10, as amended by St. 1885, c. 123, § 2, he was required to proceed to obtain the consent of the proper municipal authorities, meanwhile taking proper steps to prevent injury to travellers. Chase v. Lowell, 149 Mass. 85. In the case at bar there was evidence that the limb of the tree was an obstruction to travel and that such condition had existed for a long time. Under these circumstances it was the duty of a town official named under § 5 to order the tree trimmed or re-' moved, and in the meantime the town was required to do what was reasonably necessary to protect travellers from injury. Chase v. Lowell, 151 Mass. 422. Wright v. Chelsea, 207 Mass. 460, 465. Donohue v. Newburyport, 211 Mass. 561, 565. Although a tree warden is the only official who may trim or remove shade trees in a highway, that circumstance does not relieve a city or town from the statutory duty of keeping its highways reasonably safe and convenient for travellers. R. L. c. 51, § 1. There was evidence that the plaintiff while in the exercise of due care was travelling in a proper wagon which came in contact with the limb that in the course of time had grown over the travelled part of the way so near the surface of the street that it could be found to be an obstruction to persons travelling thereon. In these cn> cumstances the limb could be found to be a defect which it was the duty of the town to remedy. While many cases have been considered by this court involving injuries to travellers on a highway caused by trees standing within the limits of the way, most of them have arisen because of the decayed condition of such — 521 — trees, Nestor v. Fall River, 183 Mass. 265, Wright v. Chelsea, supra, Donohue v. Newburyport, supra, yet we are of opinion that there is no sound distinction between the liability of a city or town for failure to guard against defects caused by trees within the limits of a highway which are old and decayed, and those which, although sound, in course of time cause a defective condition of a highway by growth. Anything in the state or condition of a highway which renders it unsafe for ordinary travel is a defect or want of repair. Barber v. Roxbury, 11 Allen, 318. Maccarty v. Brookline, 114 Mass. 527. Chase v. Lowell, 151 Mass. 422. Griffin v. Boston, 182 Mass. 409. Wright v. Chelsea, supra. Donohue v. Newburyport, supra. Embler v. Walkill, 132 N. Y. 222. Louisville v. Michels, 114 Ky. 551. See Shaw v. Ogden, 214 Mass. 475. It could have been found that the defendant had such means of knowledge as would charge it with the duty either of ordering the tree trimmed or removed, or of giving warning or otherwise protecting travellers from injury, and that, having failed to do so, it was liable. O’Neil v. Chelsea, 208 Mass. 307. If it be assumed that the town officials authorized by § 5 to order the tree trimmed or removed are public officers for whose negligence the defendant is not responsible, that circumstance wilí not relieve the defendant from liability under the statute which is founded on its failure to" keep the street reasonably safe for travel. It follows that the order of the Appellate Division is reversed, and, in accordance with the agreement of parties, judgment is to be entered for the plaintiff in the sum of $91.19. So ordered.