
    City of Boston vs. Boston Elevated Railway Company.
    Suffolk.
    March 7, 1904.
    June 24, 1904.
    Present: Knowlton, C. J., Morton, Hammond, Loring, & Braley, JJ.
    
      Street Railway. Way, Repair of highway. Boston Elevated Railioay Company. Words, “Tracks.”
    In §§ 32, 33 of Pub. Sts. e. 113, requiring street railway companies to keep certain portions of highways in repair, which are still in force as to the Boston Elevated Railway Company, (R. L. c. 112, § 1,) the phrase “ occupied by its tracks ” means the rails and the space between them over which the cars pass and does not include the space occupied beneath the surface by the sleepers supporting the rails.
   Morton, J.

This is an action to recover of the defendant the amount of a judgment obtained by one Findlay against the plaintiff for a defect in Eliot Street, a public highway in Boston, caused by a depression in the pavement between the two tracks of the defendant company outside the rails of the northerly track but within a line drawn parallel with the ends of the sleepers upon which said rails rested. The rails were laid on wooden beams which rested on sleepers embedded in the street. The ties extended outside the rails on each side from eight and one half to ten inches. Eliot Street in the vicinity of the accident was paved from curb to curb with granite blocks.

The case was submitted on agreed facts. Judgment was ordered for the defendant and the plaintiff appealed.

The question is what is meant by the phrase “ occupied by its tracks” in §§ 32, 33 of Pub. Sts. c. 113, which are still in force against the defendant company. R. L. c. 112; § 1. The plaintiff contends that it means so much of the surface of the street as lies within lines drawn parallel to the outer ends of the sleepers on which the rails rest. But we think that it means the rails and the space between them on and over which the cars pass. The provision relates to the surface of the streets, not to what is under the surface, and when considered with reference to the surface of the streets we think that it is obvious that this is what the phrase must mean. This is the construetion which for many years the parties have put upon, the statute, and it accords more nearly with the use of the word “ tracks ” in various provisions of the statutes, such as those relating-to the removal of snow, and the use of them, than the construction contended for by the plaintiff. The construction contended for by the plaintiff would make the provision with regard to the repair of unpaved streets eighteen inches on each side the track meaningless and unnecessary.

8. M. Child, for the plaintiff.

A. P. Stone, for the defendant.

Judgment affirmed.  