269 Mass. 433 | Mass. | 1929
The plaintiff, while travelling on the
As the plaintiff’s cause of action is based on common law and not on statutory liability, she was not required to give the defendants notice in writing of the time, place and cause of the accident. G. L. c. 84, § 18. Fisher v. Cushing, 134 Mass. 374. Stevenson v. Joy, 152 Mass. 45. Seltzer v. Amesbury & Salisbury Gas Co. 188 Mass. 242. The allegation in the declaration that it was the defendants’ duty to keep the sidewalk in safe condition could not properly refer to' any statutory duty. The denial of the motion for a directed verdict was right. Although the cover was in the sidewalk which the city was obliged to keep in repair, the defendants also, who were using the coal hole for their own private purposes, had a duty to
The defendants excepted to the part of the charge in which the judge said, in effect, that if the plaintiff was entitled to recover both defendants were liable as tenants in common or eoowners, and to the refusal of the court to direct a verdict for Angela Alessi. He further instructed the jury that the defendants were not liable unless a failure to use due care to keep the coal hole in proper condition was shown. The defendant Filippo Alessi testified that he and his wife occupied the house owned by them as tenants in common. The owner of real estate who is in occupation owes a duty to exercise reasonable care in its management to avoid causing injury to others who themselves are acting within their legal rights and in the exercise of due care. Earle v. Hall, 2 Met. 353. Ainsworth v. Lakin, 180 Mass. 397. Curry v. Dorr, 210 Mass. 430. Since the enactment of G. L. c. 209, § 1, giving a married woman the right to hold, manage and dispose of real property in the same manner as if she were sole, her responsibility for all acts relating thereto has increased. Pacific National Bank v. Windram, 133 Mass. 175. Butler v. Ives, 139 Mass. 202, 204. Shane v. Lyons, 172 Mass. 199. No testimony was offered to show that the husband and wife were not both in the exercise of their full rights and sharing the full responsibility of coowners of the property.
A witness called by the plaintiff testified that three or four days before the accident she had occasion to look at the coal hole cover. Subject to the exception of the defendants, in reply to the question, tell “what you saw happen there and what you saw with reference to the coal cover,” she said: “My son slipped on the coal top and he slipped and fell on the sidewalk. He did not fall down the hole. I went over and picked him up and pushed the cover back on, where it was 1 just tilted.’ It was about an inch from where it belonged, in the hole.” This exception must be overruled. The plaintiff had a right to show
Exceptions overruled.