Barney v. City of Lowell

Foster, J.

This court has already decided that a municipal corporation is not liable in damages for an injury sustained by the carelessness of a laborer employed by a highway surveyor in repairing a highway. In the case adjudged, the laborer carelessly drove a horse and cart so that they came into collision with the plaintiff. Walcott v. Swampscott, 1 Allen, 101 . In the case at bar, the negligence imputed to the driver consisted in walking too far behind his horses and leaving them without due care and guidance while he was engaged in conversation.

The principle established by the authorities is, that the duty of keeping public ways in repair is one imposed upon all towns and cities alike, as a public duty from the performance of which they derive no special advantage in their corporate capacity; and that the agents selected to execute this duty in obedience to the law of the Commonwealth are to be regarded as public officers rather than as the servants or agents of the municipal corporation by which they are employed. The relation of master and servant does not exist, and the maxim respondeat superior does not apply. White v. Phillipston, 10 Met. 108 . Bigelow v. Randolph, 14 Gray, 543 . Hafford v. New Bedford, 16 Gray,

. Child v. Boston, 4 Allen, 52 . In our opinion the superin tendent of streets in the city of Lowell occupies the same position, in this respect, as an ordinary highway surveyor or a party *572 in the employment of such a surveyor. By the charter of Lowell, the city council may provide for the appointment or election of all officers necessary for the good government of the city not otherwise provided for, prescribe their duties and fix their compensation, and cause any street or streets, public places or squares, in the city, to be graded, paved, macadamized or repaired. St. 1836, c. 128, § 9. By the city ordinances, c. 20, § l,.the superintendent of streets and three highway surveyors are chosen annually by concurrent vote of both branches of the city council. The superintendent’s duties are fully defined in c. 11, § 2. He is to keep the streets in a safe condition for travel, attend to the repairs of the same, and make all contracts for the supply of ordinary labor and materials therefor, under the direction of the highway surveyors or joint committee on streets. These provisions constitute a system for the performance of the municipal duties as to highways which the general laws devolve upon this city in common with all other cities and towns in the Commonwealth. No distinction has been suggested at the bar, and we can discover none that is substantial, between this case and those heretofore determined. On the report there must be Judgment for the defendants