Smith v. City of Lowell

1 N.E. 412, 139 Mass. 336, 1885 Mass. LEXIS 99

Opinion

W. Allen, J.

We think that the last instruction asked for should have been given. It must be assumed, from the verdict and the finding of the jury, that the way was a private way, opened and dedicated to the public use, within the meaning of the Pub. Sts. e. 49, § 94; and that the only liability of the defendant was under § 95, which provides that “ the mayor and aider-men and selectmen or road commissioners shall, when the public safety demands it, direct and cause the entrances of such ways entering on and uniting with an existing public highway to be closed up, or may by other sufficient means caution the public against entering upon such ways; and if any such way is not closed, or if sufficient notice is not given that the same is dangerous, the city or town shall be liable for damages arising from defects therein in the same manner as if it had been duly laid out and established.”

Under this section, the condition of the liability of the defendant to persons entering upon the way, as the plaintiff did, from Bridge Street, was, that it had not closed the entrance from that street, nor given sufficient notice that the way was dangerous; if it had done either, it would not be liable under the statute. A notice that the way was a private way, and was dangerous, so posted as to be conspicuous and legible to persons entering the way from Bridge Street, would be sufficient notice to such persons. We understand this to be the purport of the instruction ashed upon that matter.

We find no other error in the rulings excepted to.

Exceptions sustained.