170 Mass. 596 | Mass. | 1898
This is an action for personal injuries suffered by the plaintiff in consequence of her stepping into an open coal hole. The coal hole was situated about eighteen inches in front of a house held by the defendant under a lease, and upon land, embraced in the lease. The house was set back from the street,, and the coal hole was two feet or more outside the street line. But the paving over the space between the street line and the house was continuous with that of the street, and there was nothing in the usual conditions to give notice that it was not part of the street except the way in which it generally was used by tenants for the deposit of barrels, etc., and the fact that the steps of the house next to it on the side from which the plaintiff was coming came out to the line of the street.
At the time of the accident, a coal wagon was backed up to the side wall in front of the premises, and coal, which had been ordered by the defendant, was being delivered from it by the servants of a coal dealer. One of these had uncovered the coal hole, and was shovelling the last of the coal out of the wagon upon the sidewalk. The other stood by the hole, doing such work as was necessary to help the coal pour down the hole. The coal covered the whole sidewalk from the wagon to near the house. The plaintiff, a Spanish woman, who according to her own testimony never had seen coal put through a coal hole before, stepped upon the steps of the next building above mentioned, thence stepped upon the coal, and then with her other leg went into the coal hole, which was thirty inches from the corner of the steps. The judge was asked to direct a verdict for the defendant, which he refused to do, and the defendant excepted.
In simple cases of this sort courts' have felt able to determine what in every case however complex, defendants are bound at their peril to know, and are presumed to know, namely, whether the given situation is on one or the other side of the line. The examples are numerous, and we take the first that come to our hand. Barron v. Eldredge, 100 Mass. 455, 460, 461. Pinney v. Hall, 156 Mass. 225. Crafter v. Metropolitan Railway, L. R. 1 C. P. 300. We think that the case at bar is not beyond our competence to decide. The greatest danger in attempting to do so is that of being misled by ready made generalizations, and of thinking only in phrases to which as lawyers the judges have become accustomed, instead of looking straight at things and regarding the facts in all their concreteness as a jury would do. Too broadly generalized conceptions are a constant source of fallacy, Thus it is easy to say that the continuity of the sidewalk
Exceptions sustained.
I am unable to agree to the opinion of the majority in this case. The building occupied by the defendant, and the adjoining buildings for a considerable distance towards the west, stood back from the line of the street about three feet and eight inches. The buildings in the other direction, with their projections, came out to the line of the street. The space in front of the defendant’s building and of the adjoining buildings towards the west was paved with the same kind of material, and on the same level all the way from the buildings to the curb
At the time of the accident the coal hole was being used for the defendant’s benefit, by her authority. If this use would ordinarily be attended with danger to the public, the defendant was bound to see that proper precautions were taken for their safety, even if the work was being done by an independent contractor. Curtis v. Kiley, 153 Mass. 123. Woodman v. Metropolitan Railroad, 149 Mass. 335. Pye v. Faxon, 156 Mass. 471, 474. Pickard v. Smith, 10 C. B. (N. S.) 470. The opinion in Clapp v. Kemp, 122 Mass. 481, does not purport to state the
Apparently the plaintiff was going as others were, except that they did not happen to step into the hole. According to her testimony she had just come from Spain, and had never seen coal put into a cellar through a coal hole. Eliot Street is travelled by many persons. Besides the plaintiff, others might have been expected there who had never seen coal put in through holes in sidewalks. The wagon was backed up to the curbstone and there were electric cars and teams passing through the street. I think that the jury well might have found that a coal hole on a public sidewalk, where a throng of persons was passing in each direction, was left open on a dark evening with coal scattered
What kind of conduct is required, under, complex conditions, to reach the usual standard of due care, namely, the ordinary care of persons of common prudence, is a question of fact to be determined according to the observation and experience of common men. Even when there is no conflict of testimony, if there are acts and omissions of which some tend to show negligence and others do not, the question whether there was negligence or not is in my judgment a question for a jury. This proposition I deem to be established by such unanimity of decision as to need no citation of authorities in support of it. I think the case was rightly submitted to the jury.
Mr. Justice Allen concurs in this dissent.