323 Mass. 53 | Mass. | 1948
This is an action of tort to recover for personal injuries alleged to have been caused by the negligent control and maintenance of land on Walnut Street, Somerville, owned by the defendant Unit, Inc., and occupied as a tenant by the defendant E. F. Kemp, Inc. The case is before us on report of the trial judge, the plaintiff having excepted to the direction of verdicts for the two defendants at the close of the plaintiff’s opening statement to the jury. From this opening, as illustrated to the jury by a plan and photographs which are before us, it appears that the premises in question were located on the westerly side of Walnut Street, north of and adjacent to a bridge which carried Walnut Street over the tracks of the Boston and Maine Railroad. Walnut Street ran substantially north and south and we assume, although it is not so stated, that it was a public way. See Carney v. Proctor, 237 Mass. 203, 205. Its westerly sidewalk was of brick, six feet in width, from which the land of the defendants extended back fifteen or eighteen feet on a level with the sidewalk to a brick building used for business purposes by the defendant E. F. Kemp, Inc. Over this land, which was surfaced with some granolithic material, was a driveway leading to the building, the two entrances of which were separated by a cement block or island. Foot travellers proceeding on the sidewalk in a southerly direction over the bridge were protected on the bridge at their right by a wooden fence which extended . northerly on the street line back from the abutment of the
There is nothing to show that the opening statement of the plaintiff by his counsel was not complete, and for the purposes of this case it is to be treated as true. Murphy v. Boston & Maine Railroad, 216 Mass. 178. Sandler v. Green, 287 Mass. 404, 406.
This is not a case where the alleged ground of liability, as in Howland v. Vincent, 10 Met. 371, and Lioni v. Marr, 320 Mass. 17, was the maintenance of a dangerous condition by one in control of premises adjoining a public way whereby one travelling on such way was injured. Relying on Holmes v. Drew, 151 Mass. 578, the plaintiff contends that the defendants by the construction and maintenance of the above described granolithic pavement induced the plaintiff, as a member of the public, to use their land in the belief that it was a part of the public sidewalk which all members of the travelling public had a right to use, and that they violated their obligation to maintain their land in a reasonably safe and convenient condition for such use. See Plummer v. Dill, 156 Mass. 426, 430; Moffatt v. Kenny, 174 Mass. 311; D’Amico v. Boston, 176 Mass.
Verdicts for the defendants on the plaintiff’s opening were properly ordered. Stevens v. Nichols, 155 Mass. 472.
Verdicts to stand.