(DOWNLOAD) "Bowman v. City Newburyport (Two Cases)" by Supreme Judicial Court of Massachusetts * eBook PDF Kindle ePub Free
eBook details
- Title: Bowman v. City Newburyport (Two Cases)
- Author : Supreme Judicial Court of Massachusetts
- Release Date : January 31, 1941
- Genre: Law,Books,Professional & Technical,
- Pages : * pages
- Size : 72 KB
Description
COX, Justice. These are two actions of tort, tried together. The plaintiff in the first action, a minor, seeks to recover damages for personal injuries, and the plaintiff in the second, his father, to recover for consequential damages. The jury returned a verdict for the plaintiff in each action, but, under leave reserved and subject to the plaintiff's exceptions, verdicts were entered for the defendant. It is apparent that the declarations are drawn under G.L.(Ter.Ed.) c. 84, § 15, to recover damages for a defect in a public way. The jury could have found that at about eleven o'clock in the forenoon of November 15, 1939, the minor plaintiff, who was then three and one half years old, while walking on the sidewalk of a public way, was severely burned when a gust of wind blew 'all over him' some of the lighted embers of piles of leaves that had been raked into the gutter and burned. It was a 'clear, rather cold day but the wind was blowing quite strong at times,' and there was no one in attendance at the piles of embers when he was injured. On the day in question, the leaves were raked and set afire under the direction of the defendant's superintendent of streets by an employee of the street department who testified that, after the various piles had burned, and when he 'felt' that they were all burned, he swept the ashes and some leaves that had been around the outer edges and had not burned into the gutter and left. No permit had been obtained to set the fire. See G.L.(Ter.Ed.) c. 48, § 13, as amended by St.1938, c. 204. There were from ten to fifteen piles, and in many instances there would be leaves in the gutter and around the outer edges that would not burn up quickly but would smoulder, and when they were swept into the gutter they would take fire again. At about one o'clock in the afternoon some leaves in the gutter and around the edges of the piles were still smoking; the face and top of the curbstone where the leaves had been burned were 'all black,' and the burned area was four or five feet out from the gutter and six to ten feet long, 'in kind of a circle.' An ordinance of the defendant (G.L.(Ter.Ed.) c. 4, § 7, Thirty-Fourth; c. 40, § 21) provides, among other things, that the mayor, subject to the approval of the city council, shall appoint annually a superintendent of streets and sewers who shall have all the powers, perform the duties and be subject to the liabilities and penalties of surveyors of highways and road commissioners. Among others, his duties, therein defined, are that he shall keep the streets clean and in good order and shall remove all nuisances, obstructions and encroachments therein or give notice thereof to the city marshal.