JAMES B. HAND vs. INHABITANTS OF BROOKLINE

GRAY, C. J. In November 1875, the plaintiff, while travelling with due care in a wagon upon a highway in the defendant town, suffered injury by reason of his horse suddenly breaking through the surface of the highway. The declaration contains two counts: the one upon the Gen. Sts. c. 44, § 22, for a defect in the highway which the town was bound to keep in repair; the other at common law, for neglect in the construction of water-pipes, (which the town was authorized by the St. of 1872, c. 343, to lay

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and maintain for the purpose of supplying water to the town, and to owners of buildings therein, at rates established by the town,) whereby the water escaped and undermined and washed away the earth under the highway. It having been conceded by the plaintiff, and ruled by the Superior Court, that the plaintiff could not recover under the first count, and a verdict having been returned for him on the second count only, the question before us is whether the action can be maintained upon this count.

The cause of action set forth in this count is not the omission to perform the duty, imposed by general laws upon all cities and towns alike, of keeping the highways in repair; but it is the neglect in the construction of works which the town had been authorized by a special statute, voluntarily accepted, to construct and to receive profits from, just as a private corporation might. For a neglect in the manner of constructing such works, by which injury is caused to person or property, a town is just as liable as a private corporation or an individual. Scott v. Mayor, &c. of Manchester, 1 H. & N. 59, and 2 H. & N. 204. White v. Hindley Local Board, L. R. 10 Q. B. 219. Bailey v. Mayor of New York, 3 Hill 531, 539, and 2 Denio 433. Aldrich v. Tripp, 11 R.I. 141. Oliver v. Worcester, 102 Mass. 489, 501. Hill v. Boston, 122 Mass. 344, 358, 359, 365, 366, 374, 375, 377. Murphy v. Lowell, 124 Mass. 564.

If the water escaping from the aqueduct by reason of its negligent and imperfect construction had injured buildings or crops, there could be no doubt of the right of the owner to recover damages against the town. The fact that the injury occasioned was within the limits of a highway, where the person injured had a lawful right to be, affords no ground for exempting the town from this liability.

The right of action against a city or town for a defect in a highway is, as has been repeatedly affirmed by this court, created and limited by the statutes. Gen. Sts. c. 44, § 22. But those statutes do not affect the common-law liability of owners of aqueducts for damages caused by negligence in their construction. If the water-works under the highway in Brookline had been constructed by an aqueduct corporation or by the city of Boston under authority of the Legislature, and for the purpose

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of supplying water at certain rates or rents, the corporation or the city would clearly be liable in an action like this; and the town of Brookline is not the less liable for an injury resulting from a neglect in the construction of its water-works, because it happens to be also the town in which the highway is situated, and which is bound by general statutes to keep that highway in repair.

The reasons on which it was held in Williams v. Hingham & Quincy Bridge & Turnpike, 4 Pick. 341, that the statutes, defining and limiting the liability of a turnpike corporation for injuries suffered by travellers in consequence of its neglect to keep its road in repair, had taken away its liability to an action at common law for such a neglect, have no application to the second count in the present case, in which, as we have seen, the ground of action is not the defect in the road, but the defect in the water-works. In Monies v. Lynn, 121 Mass. 442, and 124 Mass. 165, the action was under the statute for a defect in the highway, and not at common law for a defect in an aqueduct or pipe owned by the city.

The exceptions to the testimony of Jones cannot be sustained. The bill of exceptions does not show that any objection was taken at the trial to his qualifications as an expert. The question what the condition of the joint of the pipe after the accident, as described by Gallagher, another witness, indicated as to the original construction of the joint, was a suitable question to be put to an expert who had heard so much of the testimony of Gallagher as was material to this question. Cook v. Castner, 9 Cush. 266. Hunt v. Lowell Gas Light Co. 8 Allen 169. The answer of Jones was expressly based upon, and necessarily implies that he had heard, the statements of Gallagher, that he found a space where there was no lead, and that the lead was "soft," and had not been driven in as tightly as it might have been. The other question objected to was whether pipes, situated as this pipe was, could be affected by contraction or expansion, from the time it was laid to the following November, so as to cause the leak described. The witness answered that in his judgment it could not. This question was likewise competent under the circumstances.

The whole evidence on the general question whether there

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was negligence on the part of the defendant in the original construction of the joint of the water-pipe was conflicting, and was rightly submitted to the jury.

Exceptions overruled.

M. Williams, Jr., for the defendant.

J. W. Keith, for the plaintiff.