Connors v. Richards

230 Mass. 436 | Mass. | 1918

Carroll, J.

The plaintiff was injured by ice falling from the defendant’s building. Parts of the building were rented to tenants, but the defendant admitted that the gutters and the roof were in her charge and control. The statutory notice was seasonably given, and there was evidence that the plaintiff was in the exercise of due care. She testified, in substance, that the ice struck her on the head and “bounding, struck her muff and cut a tail off it; ” that the superintendent of the building sent her with the janitor to a lawyer’s office where she signed a receipt executed in duplicate, under seal, in full of all demands, the consideration being $5. The jury found for the plaintiff in the sum of $700.

In one part of her direct evidence the plaintiff said the .ice fell from the building. Later she testified that it fell from the roof and was about a foot long and four to five inches wide and four to five inches thick. On cross-examination she said she did not know where it came from. It was for the jury to choose between these contradictory statements. Tierney v. Boston Elevated Railway, 216 Mass. 283. Kane v. Boston Elevated Railway, 218 Mass. 101. If they believed that a piece of ice of the size described by the plaintiff fell from the roof of the building, it being admitted that the roof was under the defendant’s care and control, they could find the defendant was negligent. Shepard v. Creamer, 160 Mass. 496. Shipley v. Fifty Associates, 101 Mass. 251. Brewer v. Farnam, 208 Mass. 448. Green v. Carigianis, 217 Mass. 1. Yorra v. Lynch, 226 Mass. 153.

The defendant contends that it was entirely conjectural from what part of the building the ice fell, — that it may have fallen from the portion of the building controlled by the various tenants. That would be true were it not for the direct testimony of the plaintiff that the ice fell from the roof; and it was for the jury to say how far they relied on this statement.

According to the plaintiff’s testimony, which on the record does not appear to have been contradicted, the first offer made her was $2 "for the damage done her muff,” but after some further talk $5 was paid; before receiving this amount the release was drawn up by a young woman in the office who, when she presented it to the plaintiff for her signature, said it was a “receipt for $5 for damage to her muff,” and the plaintiff relying on this representation signed the release. It is not in evidence that at this time any claim was made for damages on account of personal injury; and the conversation concerned the personal property damage only. These facts bring the case within the rule stated in Bliss v. New York Central & Hudson River Railroad, 160 Mass. 447, 454. It was for the jury to say -yvhether the plaintiff signed the writing relying on the misrepresentation that it was a receipt merely for the damage to her property, and if they so found they could find that she was not deprived of her right to recover for injuries to her person. Freedley v. French, 154 Mass. 339. Larsson v. Metropolitan Stock Exchange, 200 Mass. 367. From all the evidence disclosed by the record, the representations as to the contents of the release were binding upon the defendant. Both of the duplicate originals of the release were part of the same transaction and the same representations applied equally to each of them.

In accordance with the report, judgment is to be entered for the plaintiff for the amount of the verdict, with interest from June 22, 1917, and costs.

So ordered.