The Superior Court having ruled upon the evidence offered by the plaintiff that he was not entitled to recover, and having ordered a verdict for the defendant, the question is presented, whether, upon either of the two causes of action, set forth in the different counts of the plaintiff’s declaration, he was entitled to have the case submitted to the jury. We shall not have occasion to consider whether the plaintiff was to be deemed a traveller upon the highway, which the defendant was bound to keep in repair, or whether, if the cause of the injury to the plaintiff was a defect therein for which the defendant was responsible, it had sufficient notice thereof, or whether proper notice of the injury, as required by statute, was given to the defendant before the action was brought, but shall assume that these subsidiary or preliminary inquiries should be answered in favor of the plaintiff.
The ground upon which the plaintiff sought to recover under his first count was by virtue of the statute, for an injury received through a defect or want of repair in the. highway which the defendant was bound to maintain. Pub. Sts. c. 52, § 18. There was evidence that a derrick was erected and standing in the *251travelled part of the road, to be used in repairing a culvert which extended across the road, and that the derrick was insufficiently and insecurely supported, one of the guy ropes extending into a neighboring meadow, and being there attached to a railroad sleeper buried in the ground, but so defectively fixed that it was pulled from its position by the weight of the derrick and by that of a stone which was being lifted thereby. By reason of this, the derrick, while thus in use by the workmen, fell upon the plaintiff, then passing in the highway, and injured him.
Whether a derrick standing in the highway and impeding travellers thereon, if one had actually collided with it, and whether a derrick thus situated, and so insecurely fixed that it was liable to and did fall from its own weight, or from purely natural causes, could be held to be a defect for which a town would be responsible, are questions not necessary now to discuss. The position of the plaintiff is, that a derrick standing in the highway, and defectively supported so that it falls when in use, is a defect for which the town is or may be liable, and thus that a machine used on the highway for the purpose of repairing it, controlled, worked, and manipulated at the time by workmen, becomes a defect, if by reason that it is thus operated, and that it is not sufficiently supported, injury is occasioned by its fall to one lawfully on the highway. To maintain his proposition the plaintiff relies much on Drake v. Lowell, 18 Met. 292, Day v. Milford, 5 Allen, 98, and Pedrick v. Bailey, 12 Gray, 161, 163, sometimes familiarly known as the awning cases. These decisions were put exclusively on the ground of the insufficient strength or defective condition of structures which were not mere incidents or attachments of the building, but were adapted to the sidewalk, and were a part of its construction and arrangement for use as such. It was deemed that danger from their insecure condition might properly be treated as arising from a defective or unsafe condition of the sidewalk. Where a sign, attached to the building only, fell, it was held, as in the case where ice overhung the sidewalk, that there was no liability of the town as for a defective highway. Jones v. Boston, 104 Mass. 75. Hixon v. Lowell, 13 Gray, 59. But in a case where a sign or transparency was supported above the sidewalk by a pole or post placed thereon, and injury was occasioned by the fall of the pole, it was held to *252come within the cases in regard to awnings above cited. West v. Lynn, 110 Mass. 514. This class of cases has been repeatedly said to express the extreme limit, in this direction, to which the liability of towns should be extended. Barber v. Roxbury, 11 Allen, 318. Jones v. Boston, ubi supra. In all of them, ■ the injury done was occasioned by the operation of purely natural causes, and did not proceed from any human agencies, as where a machine is controlled and managed by the laborers engaged thereon.
In Barber v. Roxbury, ubi supra, a rope was stretched across a highway, attached at each end to objects outside the limits of the highway, and when not in use lay loosely on the ground, not forming any obstruction to public travel until the men engaged in moving stone by means of the derrick raised the rope gradually by turning the crank to which it was attached, so as to lift the rope from the ground across the travelled space. The rope, while being so raised, struck the plaintiff’s carriage, and injured her. It was held that such injury could not be said to have been caused by any defect or want of repair in the highway.
The liability for defective highways is a limited one. It has long been settled that a plaintiff cannot recover unless the defect is the sole cause of the injury. Where this follows from a defect united with some distinct, efficient, concurring cause, without which it would not have happened, unless, as suggested by Chief Justice Shaw in Marble v. Worcester, 4 Gray, 395, such concurring cause be pure accident, the plaintiff cannot recover. Rowell v. Lowell, 7 Gray, 100. Kidder v. Dunstable, 7 Gray, 104. Lyons v. Brookline, 119 Mass. 491.
Even if it be conceded, therefore, that the derrick was such a defect in the highway that, if the plaintiff had collided with it, himself exercising due care, or if by its own weight, or from any natural cause, by reason that it was insufficiently secured, it had fallen upon and injured him, he might have recovered, such is not the case at bar. It was the act of the workmen, who employed the machine in lifting weights for which it was not properly constructed, that contributed to the plaintiff’s injury, and was the immediate moving cause of it. But for this there is no reason, from the evidence, to suppose it would have occurred. *253If the defendant is responsible for the act of those who were managing the machine, that would be a liability entirely different from that arising from its obligation to maintain the way, which we shall have occasion hereafter to consider. The derrick did not thereby become a defect in the highway, by the fall of which the defendant was subjected to the statutory liability.
The only case to which we have been referred, or which we have found, where a town has been held responsible, under a statutory liability for a defect in the highway, to a traveller injured therein, in consequence of a defective structure under the control of human agency, and being thus used and worked, is Hardy v. Keene, 52 N. H. 370. Apparently the rule in New Hampshire is different from that established in this Commonwealth, and towns are held liable for defects in a highway, even where a distinct and independent cause contributes to the injury, unless the traveller’s own carelessness is also a contributory cause. The cases in other States, where legislation and judicial decision differ, cannot always be safely followed. We are not disposed to accept the proposition, that a machine under the active charge of individuals is to be treated as a defect in the highway if injury results from its operation, and not merely from its presence there.
If the defendant was not under a statutory liability to the plaintiff because of a defect or want of repair in the highway, the plaintiff also sought to recover against it upon a common law liability for the negligence of its agents and servants employed by it in doing certain work which it had undertaken. This cause of action is set forth in the second count of the plaintiff’s declaration, and there was evidence that in the erection of an insufficiently supported derrick, and in the operation of it in lifting weights which it was inadequate to sustain, there was negligence on the part of those doing the work of making or repairing the culvert across the road, in which they were engaged.
The question is therefore presented, whether, upon the evidence, Cushing, the person doing the work, and those engaged with him, are to be treated as the agents or servants of the defendant. Cushing was a highway surveyor, regularly chosen as such by the town, and the work was being done within the *254district assigned to him. That a town is not responsible for the acts of highway surveyors, or the men employed by them, in doing duty imposed upon them by law in the repair of highways, has been repeatedly decided, and the reasons for this exemption have often been stated. Hafford v. New Bedford, 16 Gray, 297. Barney v. Lowell, 98 Mass. 570. Walcott v. Swampscott, 1 Allen, 101. Tindley v. Salem, 137 Mass. 171. Cushing v. Bedford, 125 Mass. 526. Manners v. Haverhill, 135 Mass. 165, 171. McKenna v. Kimball, 145 Mass. 555. Clark v. Easton, 146 Mass. 43.
That a town, although it has duly chosen surveyors of highways, may, from time to time, or for special reasons or occasions, undertake to repair its ways and bridges in some other than the regular and statutory manner, and may select and employ men as its agents for this purpose, in which case it would be responsible for torts committed by them, must also be conceded. Hawks v. Charlemont, 107 Mass. 414. Deane v. Randolph, 132 Mass. 475. Sullivan v. Holyoke, 135 Mass. 273. Tindley v. Salem, ubi supra. Waldron v. Haverhill, 143 Mass. 582. Nor, if the town had undertaken to make the repair of the drain or culvert through an agent selected for the purpose, whom it was entitled to control in the performance of his work, would it be, perhaps, important that such agent was also a highway surveyor.
But in the case at bar the town selected no agent to do this work. It did, indeed, pass a vote “ to raise and appropriate $200 to enlarge the drain across Broad Street, . . . also the drain across Commercial Street,” in the performance of which latter work.the injury complained of by the plaintiff occurred; but there is nothing to show that it was not left to be performed by the public officers whom it had chosen according to law, and on their official responsibility as such. The work was itself the repair of a highway, within the scope of Cushing’s authority and duty as highway surveyor. In performing it, he had no authority from the town to act otherwise than as a public officer, nor did he attempt to do so, as far as the evidence shows. If he had done so, it would not be important, as it would not be in his power alone to divest himself of his public character and constitute himself the servant of the town. Nor, if it were possible to construe the appropriation for enlarging the drain on Commer*255cial Street, as tlie plaintiff urges it may be, — in which position we do not concur, — as requiring the selectmen to do this work by employing some suitable person as a servant of the town, does the case afford any evidence that Cushing was thus employed.
A general direction is given to the selectmen over the work of highway surveyors in their respective'districts, to.see that the money appropriated to such districts is carefully and judiciously expended. Pub. Sts. c. 52, § 3. Benjamin v. Wheeler, 15 Gray, 486, 490. The responsibility of doing the work, directing the laborers, and taking charge of the repairs, is that of the highway surveyor.
The facts that Humphrey, one of the selectmen, told Cushing that there was an appropriation of $200 to spend in widening the drain across Commercial Street, and that it would come in with the general work when it was the proper time to do it, or when Cushing “ saw fit to do it,” or that, as Cushing afterwards states, “ In substance, Humphrey told me the work was for me to do, when the proper time arrived, in the general work,” furnish no evidence of any engagement or contract with Cushing as the agent of the town, or of the selectmen, even if the selectmen had authority to make such engagement.
Judgment on the verdict.