318 Mass. 719 | Mass. | 1945
This action is for conscious suffering and death of the plaintiff’s intestate, a boy six years and three months of age, which resulted from his being burned on May 27, 1941, in a tar kettle containing hot tar located in the back yard of a tenement house in which his father, the plaintiff, was a tenant at 52 West Street in Holyoke.
The jury found for the defendants on counts alleging wilful, wanton, and reckless conduct but returned verdicts for the plaintiff on counts alleging negligence. On leave reserved the judge entered verdicts for the defendants on the negligence counts as well. The only question presented is whether there was any evidence to warrant a finding that the injury and death were caused by the violation of any duty of care which the defendants owed to the deceased.
The only evidence as to how the deceased got into the tar kettle came from a ten year old boy who was an eyewitness, and in the form of declarations which the plaintiff testified the deceased made before his death. The ten year . old boy testified that the deceased got up on the garage-roof; that an older boy promised the deceased a penny, if the deceased could jump on the cover of the tar kettle; and that the deceased jumped from the roof to the cover, but hit the cover on the side, and "it slid and he fell right in.” However, the alleged declarations by the deceased were to the effect that he "thought it was a box” and tried to jump
The defendants contend that they are not liable for negligence because the deceased was injured as the result of trespassing upon their tar kettle. They cite McGuiness v. Butler, 159 Mass. 233, Gay v. Essex Electric Street Railway, 159 Mass. 238, Holbrook v. Aldrich, 168 Mass. 15, Falardeau v. Malden & Melrose Gas Light Co. 275 Mass. 196, and Urban v. Central Massachusetts Electric Co. 301 Mass. 519. But this contention is disposed of by the evidence of the declarations of the deceased from which the jury could find that he did not come into contact with the tar kettle intentionally but that he landed upon it unintentionally while trying to jump over it. If the jury believed this, such an unintended and inadvertent contact with the defendants’ personal property was not in itself a trespass upon that property. United Electric Light Co. v. Deliso Construction Co. Inc. 315 Mass. 313, 318. Am. Law Inst. Restatement: Torts, § 217, and comments; § 218, comments a and b. Compare as to real estate, Am. Law Inst. Restatement: Torts, 389, Topic 2, scope note, and §§ 165 and 166, and comments.
But the entry of verdicts for the defendants on the negligence counts was right for another reason. We think there was no evidence that the defendants were negligent with respect to such an injury as that suffered by the deceased in the circumstances shown. Even if the deceased had been playing about on the surface of the yard, it is not clear that there would have been evidence for the jury of negligence in leaving the tar kettle where it was in the condition in which it was left. So far as appears there had been no fire in it for over four hours. So far as appears no one could be injured unless he got into the tar which was still hot in the inner pot. It is not easy to understand how a child too young to appreciate the danger could get into the inner pot
We are of opinion that the defendants were not shown to be liable for this unfortunate occurrence.
Exceptions overruled.