Commonwealth vs. Central Bridge Corporation, 12 Cush. 242

Shaw, C. J. The defendant corporation is the proprietor of a toll-bridge in the city of Lowell, erected many years ago, when the town of Chelmsford occupied one side of the Merrimac River, and Dracut the other, and this company was incorporated, for building a toll-bridge to connect them. They were indicted for a neglect of public duty, in not keeping the bridge in a safe and convenient condition for travellers by night as well as by day, whereby it became a public nuisance.

It is described as a bridge entirely covered by a roof, and the unsafe condition is alleged to ai-ise from their failure to keep the bridge lighted, during the night. Upon trial, the corporation having been found guilty, took exceptions, and the questions arising therein have been brought before this court. This company was constituted, and their charter and act of incorporation passed, February 24, 1825, by St. 1824, c. 110: several acts have been since passed in addition, but no one which affects this case.

The great question is, whether the defendant corporation is bound to keep this bridge artificially lighted, during the night, provided such lighting is necessary to, the safety and convenience of persons passing over it in the night. The only clause in the act of incorporation, which bears upon the question, is in

section 2 of the original act, and expressed in these words : “ they are authorized to erect a bridge over Merrimac River, at Bradley’s Ferry, so called, between the towns of Draeut and Chelmsford, and said bridge shall be well built, of good materials, not less than twenty-eight feet wide, and well covered with plank or timber, and shall always keep one sidewalk, with sufficient rails, and shall be boarded up eighteen inches high from the floor of said bridge, for the safety of passengers, and said bridge shall at all times be kept in good, safe, and passable repair.” It is argued, on the part of the defendants, that they are bound only by the statute; that no duty, of the kind charged, is imposed on them by any words in this statute, unless it be to “keep in repair;” and that “ repair ” means restore,replace, make good, or reinstate that which has become defective, through accident or decay.

But we think this would be sticking too closely to the letter. We are to take the whole together, and construe it with reference to the subject-matter, to which it manifestly relates. A bridge is a structure for passing over water, and is itself a part of a highway, for all kinds of travel, which, on account of its heavy expense, is often built by a company, who are reimbursed by a toll. It is still, to all intents, a public highway, established for the same uses, and as such, must be safe and convenient for all kinds of travel, at all seasons, and at all times of day and night.

All this is substantially implied in the word “ bridge,” as used in this connection, in acts of incorporation. Were we to adopt the literal construction contended for, the act would create no obligation on the corporation to maintain and keep open the bridge, to watch it and guard it, and give notice of any danger. Nor would it oblige them to keep it safe and convenient, by being kept free from dangerous obstruction. It might be incumbered, if not rendered impassable, by wood, timber, stone, or other cumbrous articles, and yet would not be out of “ repair ” in the literal sense of the term.

If it was originally a covered bridge, then the construction and placing of lamps, or other means of lighting in the night, was necessary to the “ erecting; ” and the bridge was defective without them ; if, being so placed, the company failed to keep them lighted at proper times, it was a failure of duty in maintaining the bridge. But it is said, that artificial light is not necessary to render a bridge safe and convenient.

We understand that this bridge was entirely covered with a tight roof, so as to exclude all the light of the moon and stars; a light which, by a wise provision in the order of nature, is sufficient, unless, perhaps, when the sky is overcast by a very dense thundercloud, to enable persons to travel the highways in the night, with a good degree of safety. But it is urged, that the adoption of this principle would impose on towns the obligation to light all their roads from town to town.

If all these roads were covered with roofs, so as to exclude all other sources of light, perhaps such a requisition would not be unreasonable. But we suppose this was an extreme case put in the argument by way of illustration; and it may, perhaps, be properly met by a like extravagant hypothesis. But to come back to the construction of the act of incorporation, the court are of opinion, that taking the entire act, the defendants were bound to build, maintain, and keep a bridge, being a

section of a highway, and it was their duty to keep it in a safe and convenient state and condition to accomplish the purpose for which it was designed. Then, whether light in the night time was necessary to render it safe for all travellers, was a question of fact, and as such, was left to the jury. They were instructed that it was for them to determine, upon all the evidence before them, what was reasonably safe and convenient, for persons passing over the bridge in the night time, and, whether the defendants did so light the bridge, as to make it reasonably safe and convenient for passengers.

We think this instruction was right. Another ground of defence is, that the indictment does not charge the defendants with any indictable offence. We suppose it a perfectly well-settled principle, that neglect of a public duty, by an individual or a corporation, may be prosecuted and punished by indictment, and that this is the proper mode by which the law is to be enforced. That such an of* fence is well charged, seems to us clear.

The second count, after setting forth the act of incorporation, the building and use of the bridge, alleges that the defendants were bound “ to keep and maintain the same in such a condition, as to render the same safe and convenient for travellers,” &c.; that the defendants, “regardless of their duty in this behalf, negligently and wilfully suffered and permitted said bridge to be and remain in such a condition as to render it unsafe and inconvenient for travellers, by neglecting to keep the same properly and suitably lighted in the night time, to the great damage and common nuisance,” &e.

If we are right in so construing the act, as to render the defendants liable to the duty of keeping their bridge ¿afe and convenient, and the failure to have it suitably lighted did so render it unsafe, as found by the jury, then such neglect of public duty is established, and the defendants are liable to the penalties therefor. Exceptions overruled; case rema/nded for sentence.