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The liability of the commission is fixed by R. L., c. 47, § 13, which is as follows:
The commonwealth shall be liable for injuries sustained by persons while traveling on state highways, in the manner and subject to the limitations, conditions and restrictions provided in sections eighteen, twenty and twenty-one of chapter fifty-one, except that notice of the injury shall be given to a member of the commission or to its secretary. The commonwealth shall not be liable for an injury which may be sustained upon the sidewalk of a state highway or during the construction of such highway. The amount which may be recovered for any such injury shall not exceed one-fifth of one per cent of the state valuation last preceding the commencement of the action of the city or town in which the injury was received, nor shall it exceed four thousand dollars.
Section 18 of chapter 51 of the Revised Laws, above referred to, is as follows:
If a person sustains bodily injury or damage in his property by reason of a defect or a want of repair or a want of a sufficient railing in or upon a way, causeway or bridge, and such injury or damage might have been prevented, or such defect or want of repair or want of railing might have been remedied by reasonable care and diligence on the part of the county, city, town or person by law obliged to repair the same, he may, if such county, city, town or person had or, by the exercise of proper care and diligence, might have had reasonable notice of the defect or want of repair or want of a sufficient railing, recover damages therefor from such county, city, town or person; but he shall not recover from a county, city or town more than one-fifth of one per cent of its state valuation last preceding the commencement of the action nor more than four thousand dollars, and no action therefor shall be maintained by a person whose carriage and the load thereon exceeds the weight of six tons.
It has been held that there is no liability upon a city or town for damages to the person or property of a traveler upon its ways, except such as is fixed and imposed by statute. Monies v. Lynn, 121 Mass. 442. And such damage must be caused by reason of "a defect or a want of repair or a want of a sufficient railing in or upon a way, causeway or bridge." The question to be determined is, therefore, whether the application of liquid asphalt or tar in connection with the construction of a highway
in and of itself constitutes a defect or a want of repair in the highway, within the meaning of the statute.
It is, I think, obvious that the application of the substance above mentioned to the highway cannot constitute “a want of repair," if, as must be assumed, it is a proper material to be used in the repair and maintenance of the surface of a highway, and is properly applied without negligence upon the part of the contractor or of the agents of the Commonwealth.
The statutes have nowhere defined what is to be considered as a "defect."
The duty of a town is to make the highway safe and convenient for travelers. Raymond v. Lowell, 6 Cush. 524; Horton v. Ipswich, 12 Cush. 488. In the present case no question of the safety of the traveler arises, since the injury is analogous to that occasioned by the spattering of mud or water from the moist surface of the highway, which latter does not constitute a defect. See Stone v. Hubbardston, 100 Mass. 49, 56; McAuley v. Boston, 113 Mass. 503; Williams v. Lawrence, 113 Mass. 506; McGowan v. Boston, 170 Mass. 384. Taking all the cases together, I am of opinion that, in order to constitute a defect within the meaning of the statute, it is necessary that there should be something in the condition of the highway, either by reason of defective construction or want of repair or in the nature of an obstruction, which is dangerous to the safety of the traveler, and not merely damaging to the appearance of his attire or to the conveyance in which he travels. Here the road was properly posted, so as to draw the attention of the traveler to its condition of recent repair and to put him upon his guard in passing across it, and the only result of the application of the material by which damage was occasioned would have been, had these warnings been heeded, the inconvenience of seeking another route of travel. For mere inconvenience, occasioned even by a defect, there appears to be no remedy given under the statutes. Brailey v. Southborough, 6 Cush. 141; Holman v. Townsend, 13 Met. 297, 299; Smith v. Dedham, 8 Cush. 522.
I am further of the opinion that even if the method of the application of the liquid asphalt to the way in question was im
proper or negligent upon the part of the contractor or agents of the Commonwealth, such negligence would not make the existence of liquid asphalt upon the surface of the way a defect, within the meaning of the statute. For mere negligence of cities or towns, not constituting defects in the way, the statute in question affords no remedy. See Billings v. Worcester, 102 Mass. 329, 333.
I am therefore of the opinion that the claims in these instances have no basis in law, and that the Commonwealth is not liable therefor.
LABOR-EMPLOYMENT OF CHILDREN— CHILD UNDER FOUR-
Under the provisions of R. L., c. 106, § 28, as amended by St. 1905, c. 267, § 1, that "no child under the age of fourteen years and no child who is over fourteen and under sixteen years of age who does not have a certificate as required by the following four sections certifying to the child's ability to read at sight and to write legibly simple sentences in the English language shall be employed in any factory, workshop or mercantile establishment," no school committee or superintendent of schools or other person is authorized to issue to a child under fourteen years of age the certificate above referred to, and such child may not at any time be employed in a factory or workshop.
Chief of the
Your communication of recent date requests my opinion To the upon certain questions relative to the interpretation to be given Massachusetts to R. L., c. 106, § 28, as amended by St. 1905, c. 267, § 1. The statute above referred to, as amended by St. 1905, c. 267, § 1, is as follows:
No child under the age of fourteen years and no child who is over fourteen and under sixteen years of age who does not have a certificate as required by the following four sections certifying to the child's ability to read at sight and to write legibly simple sentences in the English language shall be employed in any factory, workshop or mercantile establishment. No child under the age of fourteen years shall be employed at work performed for wages or other compensation, to whomsoever payable, during the hours when the public schools of the city or town in which he resides are in session, or be employed at work before six o'clock in the morning or after seven o'clock in the evening.
A modification of St. 1905, c. 267, has, however, been made by St. 1906, c. 284, § 2, which is as follows:
Minors to whom said chapter two hundred and sixty-seven applies shall be permitted to work on Saturdays between the hours of six in the morning and seven in the evening, in mercantile establishments.
Can a child under fourteen years of age, and who has a certificate from the authorized school authorities certifying the child's ability to read at sight and to write legibly simple sentences in the English language, be legally employed in any factory, workshop or mercantile establishment during the hours when the public schools of the city or town in which he resides are not in session?
If a child under fourteen years of age can read at sight and write legibly simple sentences in the English language, can the school committee, superintendent of schools, or person authorized by the school committee, issue him a certificate as provided in section 32, chapter 106, Revised Laws?
Since both questions refer to the possession by a child of a certificate issued by the school authorities certifying to the ability of the child to read and write, it may simplify the issues if I state at the outset that in my opinion the provisions of the statutes quoted and the subsequent sections of chapter 106 of the Revised Laws, relative to the certificate mentioned, have no application whatever to a child under fourteen years of age.
It therefore follows that the fact stated in your first question, that the child under fourteen years has a certificate of ability to read and write, can have no bearing upon the question as to the legality of the employment of the child in a factory, workshop or mercantile establishment during the hours when the public schools of the city or town in which he resides are not in session.
By the provisions of R. L., c. 106, § 28, as amended by St. 1905, c. 267, § 1, quoted above, the employment of any child under fourteen years of age in any factory, workshop or mercantile establishment, was absolutely prohibited.
The employment of a child over fourteen years of age, but
under sixteen, was prohibited, unless that child had attained to a prescribed degree of education, and could obtain a certificate from the proper authorities certifying to that fact.
The obvious intent of the statute was to preserve the original provision of the statute preventing the employment of a child under fourteen years of age, under any circumstances, in a workshop, factory or mercantile establishment; and, further, to provide additional opportunity for the education of children by creating a second class of children, consisting of those more than fourteen but less than sixteen years of age, who might not be employed in the establishments specified until they were able to pass a prescribed educational test.
Construing the provisions of the statute, therefore, in accordance with the clear purpose of the act, it is obvious that the provisions relative to the educational qualification refer only to the second class mentioned, the children between fourteen and sixteen years of age.
Construing the provisions of the statute according to the wellrecognized rule of statutory construction, — that a limiting clause is to be confined in its application to the last antecedent unless the subject-matter of the act requires a different construction, the same conclusion is reached.
The modification of St. 1905, c. 267, by St. 1906, c. 284, § 2, quoted above, permits the employment of the minors to whom St. 1905, c. 267, applies, on Saturdays between the hours of 6 in the morning and 7 in the evening in mercantile establishments, and leaves unchanged the law as to employment in factories and workshops.
Upon your first question, therefore, my opinion is that a child under fourteen years of age may not be employed in a factory or workshop at any time, and may be employed in a mercantile establishment only on Saturdays between the hours of 6 in the morning and 7 in the evening.
Upon your second question my opinion is, that no school committee, superintendent of schools or other person is authorized by the statutes to issue to a child under fourteen years of age a certificate under the provisions of R. L., c. 106, § 32.