Carney v. Proctor

De Courcy, J. The declaration alleges in substance that the plaintiff was injured while walking on a sidewalk in front of the defendant’s premises; that the walk was constructed by the defendant in a negligent manner, “in that the said sidewalk had steep projecting banks or sides that formed a hole or declivity, constituting a defect and making said sidewalk unsafe and dangerous and of such an unusual character that a rail or barrier should have been put up to make the use of said sidewalk reasonably safe for the purpose of travel.” It further alleges that he fell and was injured by reason of said defective condition. The allegations are so indefinite and obscure that it is not clear what breach of duty on the part of the defendant is relied upon. It is not stated whether the sidewalk was in a public or a private way. The assertion that the defendant “had control over” the portion of the sidewalk opposite his premises, at or near which the plaintiff fell, suggests a private way. But, apart from the plaintiff’s disclaimer of this interpretation, if the accident had occurred on a private way the declaration would be defective in not alleging that the plaintiff was using the way rightfully, as upon an invitation from the defendant. We assume, then, that “West Main Street in the town of Ayer,” referred to as a “highway,” is a public way. Apparently the negligence relied on is the failure to put up a barrier in order to make the sidewalk, with its "steep projecting banks or sides,” reasonably safe for travel. But the duty to maintain such railing would be on the town, not on the abutter. St. 1917, c. 344, Part IV, §§ 1, 24. Thompson v. Boston, 212 Mass. 211, and cases cited. It is not alleged that the defendant constructed the walk under the provisions of Part V, § 5 of said highway statute. See Commonwealth v. Franklin, 133 Mass. 569; Appleton v. Nantucket, 121 Mass. 161. The declaration states that the defendant “constructed” the sidewalk. If, as argued by the plaintiff, the defendant did construct the walk originally, and prior to the accident its control was taken over by the town, the defendant thereafter not only was not obliged, but [206] he had no right, to erect a railing or barrier in the public way. See Lexington Board of Survey v. Suburban Land Co. 235 Mass. 108, 111. The doctrine of a continuing nuisance has no application to the alleged facts. See Howard v. Central Amusement Co. 224 Mass. 344. The practice act requires that a declaration "shall state concisely and with substantial certainty the substantive facts necessary to constitute the cause of action.” R. L. c. 173, § 6. The plaintiff, under any reasonable interpretation of his declaration, has failed to allege the breach of any legal duty owed to him by the defendant. The demurrer was sustained rightly, and the judgment for the defendant must be affirmed. ■So ordered.