Seltzer v. Amesbury & Salisbury Gas Co.

74 N.E. 339, 188 Mass. 242, 1905 Mass. LEXIS 1137

• Court: Massachusetts Supreme Judicial Court
• Decided: May 19, 1905
• Status: Published

Opinion

Hammond, J.

The sole question is whether the provisions found in R. L. c. 51, § 20, requiring notice of the time, place and cause of the injury to be given are applicable to this action.

By the plain reading of the statute, the provision for such a notice is applicable only where the action is brought for failure to perform the duty imposed by law of keeping the way in repair. And it is applicable in such an action whether the defendant be a town, corporation or person. Dickie v. Boston & Albany Railroad, 131 Mass. 516. Dobbins v. West End Street Railway, 168 Mass. 556. Where, however, the action is at common law for creating a defect in the highway, it is not applicable. Hand v. Brookline, 126 Mass. 324. Fisher v. Cushing, 134 Mass. 374.

We are of opinion that the defendant was not a party obliged by law to keep in repair the highway within the meaning of R. L. c. 51, § 20. R. L. c. 110, § 76, provides that “ gas light companies . . . may, with the consent in writing of the mayor and aldermen of a city or the selectmen of a town, dig up and open the ground in any of the streets, lanes and highways thereof, so far as is necessary to accomplish the objects of the corporation ; but such consent shall not affect the right or remedy to recover damages for an injury caused to persons or property by the acts of such corporations. They shall put all such streets, lanes and highways into as good repair as they were in when opened; and upon failure so to do within a reasonable time, shall be guilty of a nuisance.”

It is plain that this act does not impose upon gas companies the duty of keeping in repair that portion of the street which they may temporarily dig up. It simply requires them to put the streets “ into as good repair as they were in when opened.” When that is done, their duty is performed, and that is so although even then the street is left defective. They may,leave the street as they found it. If they found it defective, they may leave it with the same defect. Such an obligation comes far short of a liability to keep the street in repair. Moreover, the statute has reference simply to a temporary condition of things, existing while the work is going on, and extending only so long as may be reasonably necessary to put the road in its former condition. In the present action the liability of the defendant is not based upon its failure to keep the road in proper repair, but upon its act in digging a pit and leaving it insufficiently or improperly filled, thus creating an obstruction to public travel. See Hand v. Brookline, ubi supra.

Exceptions overruled.