Bacon v. City of Boston

Dewey, J.

1. The objection, that the owner of the building adjacent to the cellar window, and not the city of Boston, is the party liable for the damages sustained by the plaintiff, is not well maintained. Upon this point, the law is very clear. The liability for injuries occasioned by defects in the public streets attaches to the city, and this liability extends to the sidewalks, when they constitute a part of the public streets. As such, they are to be kept in a safe and convenient state of repair for public use. It does not vary the principle, or discharge the liability, that individuals, as owners of the fee, me permitted to use the premises, above or below the easement, for private purposes not inconsistent with the right of the public.

2. It was more strongly insisted, that the street being llrty feet in width, and the defect extending only fourteen inches into the sidewalk, ample space was left for the safety and convenience of travellers ; and, therefore, that the city should not be charged with the loss or damage sustained by the plaintiif. Much reliance was placed on the case of Howard v. North Bridgewater, 16 Pick. 189. But the cases are dissimilar. It is true, that when a road of suitable width is made and kept in a proper state of repair, and guarded with proper barriers to protect travellers using the same, if a traveller voluntarily leaves the made road or usually travelled path, and thereby encounters pitfalls, or obstructions, endangering his person or his property, he can have no remedy against the town for an injury thus received without the limits of the travelled way. But the case supposed is not one of city travel. The law, as to the extent of repair, and what will constitute obstructions rendering a public way unsafe and inconvenient for the traveller, must depend in a good degree upon the locality of the road. In the present case, the entire sidewalk was only six and a half feet in width. A sidewalk of this width, in the city of Boston, should be for its whole extent so constructed and fitted for use, as to be safe for all persons passing over it.

3. It was insisted, that the. city was not liable for injuries sustained by reason of defects in the sidewalk in question, on the ground, that by a special statute applicable to Boston, the. surveyors of highways have the right to regulate sidewalks ; and the surveyors of highways having accepted this sidewalk, with the cellar window occupying a part of the space, the aperture was lawfully there. But this statute provision, giving such authority to the surveyors, was passed, we apprehend, alio intuitu. Its object was So place in the hands of the city authorities ample'means for the supervision of sidewalks; thus securing the safety of the traveller, and thereby exonerating the city from liability for damages by reason of defective sidewalks. The presiding judge, therefore, very properly ruled, that these special provisions, as to the acceptance of sidewalks, do not exonerate the city from liability for defects in them, and for neglect to keep them in a safe and convenient state for the public nse.

4. Upon the remaining point, that the existence of similat apertures in various other parts of the city, and that for a long period, did not show that the alleged defect was not one for which the city was liable, if any damage were occasioned thereby, the ruling was also correct.

That the jury should consider all facts bearing upon the manner in which the streets of the city are used, and the purposes of sidewalks, and how far openings in them are obstructions to their proper use, and for this purpose have reference to the nature of such apertures, and the extent to which they have heretofore been permitted to exist, might be properly urged; but the fact, that similar apertures had existed for a long time, and to a great extent, would not authorize the jury to find, that such apertures “were not actionable obstructions,” or such defects as would charge the city, if an injury was occasioned thereby to a traveller, and if in fact such apertures caused the sidewalks to be in a dangerous state.

Judgment on the verdict.