Blessington v. Boston, 153 Mass. 409, 411-412. Fox v. Chelsea, 171 Mass. 297, 301. Exceptions sustained.
Had the Commonwealth consented to place itself on the same statutory footing as municipal corporations are placed by law in relation to the imposed duty to keep the streets and ways reasonably safe and convenient for travellers with their horses, teams and carriages, at all seasons of the year, on the reported facts it could reasonably be said that the evidence warranted a finding of due care on the part of the petitioners and of negligence on the part of the respondent. Fox v. Chelsea, 171 Mass. 297. Burditt v. Winchester, 205 Mass. 493. We are unable to agree with the contention of the petitioners to the effect that the only reasonable and fair construction to give to the language of the statute excluding the Commonwealth from liability for injuries to travellers upon State highways during the construction, reconstruction or repair of those highways, requires that the exemption be limited to that part of the way which is immediately in process of change, and does not relieve the Commonwealth from liability or extend to the approaching way or to barriers thereon one hundred and fifty feet distant, even though that way and the barrier are incidental and necessary to the execution of the work and afford a warning and protection to travellers who otherwise might come upon a disturbed and dangerous way.
The distinction long has been established between the liability of municipalities for acts done in their public capacity in the performance of functions required of them by the Legislature for the common good and for acts done in their private capacity in the management of property voluntarily held and devoted to business enterprises undertaken for their own profit, although ultimately subserving a public need. Oliver v. Worcester, 102 Mass. 489, 499. Moynihan v. Todd, 188 Mass. 301. It has been repeatedly held, in the application of this well settled distinction, that the establishment and maintenance of a system of water supply in part for the use of inhabitants who pay for the necessity thus supplied, is a commercial venture, and that for negligence in connection therewith the city or town is liable as a private corporation would be in performing a similar service. Hand v. Brookline, 126 Mass. 324. Perkins v. Lawrence, 136 Mass. 305. Stoddard v. Winchester, 157 Mass. 567. Fox v. Chelsea, 171 Mass. 297. Johnson v. Worcester, 172 Mass. 122. Lynch v. Springfield, 174 Mass. 430. Kelly v. Winthrop, ante, 471. Murray v. Boston, ante, 501. These are direct adjudications.
There is nothing upon this point to distinguish this from numerous other trench cases, where the due care of the plaintiff has been held to be for the jury. Prentiss v. Boston, 112 Mass. 43. Norwood v. Somerville, 159 Mass. 105. Bennett v. Everett, 191 Mass. 364. Picquett v. Wellington-Wild Coal Co. 200 Mass. 470. Dix v. Old Colony Street Railway, 202 Mass. 518. Torphy v. Fall River, 188 Mass. 310. Hyde v. Boston, 186 Mass. 115. Block v. Worcester, 186 Mass. 526. Gustafsen v. Washburn Moen Manuf. Co. 153 Mass. 468. White v. Boston, 122 Mass. 491. O'Neil v. Hanscom, 175 Mass. 313. Fox v. Chelsea, 171 Mass. 297. Although the plaintiff might have reasoned that because the work of digging had been progressing in the direction of the tracks, it was likely to cross them if continued on the day of the accident with the same expedition as before, yet she had no knowledge respecting it, and was not bound to speculate as to possible dangers when no indication of any appeared before her. See Thompson v. Bolton, 197 Mass. 311 and cases cited; Winship v. Boston, 201 Mass. 273. There was also ground for a finding of negligence on the part of the defendant.
So far as it depends upon this part of the case, the defendant's exceptions cannot be sustained. Leonard v. Boston, 183 Mass. 68. O'Neil v. Hanscom, 175 Mass. 313. Fox v. Chelsea, 171 Mass. 297. McGuinness v. Worcester, 160 Mass. 272. Norwood v. Somerville, 159 Mass. 105. It is not denied that there was evidence of an actionable defect in the sidewalk; but it is earnestly contended that there is no evidence that the defendant had notice, or by the exercise of proper care and diligence might have had notice, of the alleged defect.
So it may be held for negligence in the construction of water works or the laying of water pipes. Lynch v. Springfield, 174 Mass. 430. Fox v. Chelsea, 171 Mass. 297. Stoddard v. Winchester, 157 Mass. 567. Perkins v. Lawrence, 136 Mass. 305. Hand v. Brookline, 126 Mass. 324. Like liability has been held to exist in the case of appliances and supplies used for the lighting of streets, on the ground that one of the purposes aimed at, at least incidentally, is to facilitate the use of the public ways for which the city is responsible, and to guard against the liability that might exist for accidents caused by any defect therein.
Lynch v. Springfield, 174 Mass. 430, 431, and cases cited. Fox v. Chelsea, 171 Mass. 297. Although the construction and maintenance of sewers is chiefly in the public interest, it has long been held that a commercial element is involved, which creates a liability in cities and towns for negligence in the performance of the work.
Donaldson v. Boston, ubi supra. Fox v. Chelsea, 171 Mass. 297. There also was evidence for the consideration of the jury of the due care of the plaintiff.
Mersey Docks Trustees v. Gibbs, 11 H. L. Cas. 686. "When a municipal corporation transacts business as a vendor and distributor of water, the relation of her employees is that of servants to her, and the maxim respondent superior applies to their acts and negligence in conducting this business." Philadelphia v. Gilmartin, 71 Pa. 140, 158; Fox v. Chelsea, 171 Mass. 297; Hand v. Brookline, 126 id. 324; Lynch v. Springfield, 174 id. 430. The city of Norwich was incorporated as a city under a special charter.
Moreover if he could have asked to have the trial ended because of this he did not do so, but on the judge's directing the counsel to confine his argument within proper limits took his chances of getting a verdict without asking to have instructions given to the jury on the matter. Under these circumstances the general rule that a motion for a new trial rests in the discretion of the judge (as to which see Fox v. Chelsea, 171 Mass. 297) applies here. O'Connell v. Dow, 182 Mass. 541. Commonwealth v. White, 148 Mass. 429. The other exceptions have not been argued and we treat them as waived.