Doherty v. Inhabitants of Braintree

C. Allen, J.

It is a general rule in this Commonwealth, though subject to some exceptions, that a private action will not lie against a town to recover damages sustained in consequence of the negligence of its agents in the performance of a duty which, under requirement or authority of law, the town has assumed, with a sole view to the general benefit, unless such action is given by statute. Hill v. Boston, 122 Mass. 344, 345, 351 . Tindley v. Salem, 137 Mass. 171 . See also Benton v. Boston City Hospital, 140 Mass. 13 .

But the duty of building a road or bridge has not been deemed to fall' within this general rule, and such liability has been held to exist where a town has voluntarily or compulsorily assumed the performance of such duty. Hawks v. Charlemont, 107 Mass. 414 . Deane v. Randolph, 132 Mass. 475 . Waldron v. Haverhill, 143 Mass. 582 . We cannot distinguish the present case from Deane v. Randolph . The duty of rebuilding the bridge was put upon the town, and the town proceeded to do the work through agents whom it might direct and control, namely, the selectmen and the committee of citizens. The fact that the draw was required to be thirty-six feet wide, and that the bridge was required to be built according to plans which must first be approved by the board of harbor and land commissioners, did not take from the town the control of the work, in any such sense as to exonerate it from responsibility for negligence in the details of construction.

Exceptions sustained.