195 Mass. 118 | Mass. | 1907
1. There was ample evidence that the plaintiff was in the exercise of due care at the time of receiving her injuries. Her uncontradicted testimony showed that she “ was picking her way along, as there was a { mix up ’ at that point and the street was crowded . . . there were people in front and behind her coming and going” ; and as she was walking on a board walk outside the sidewalk she hit against a “ board sticking out of the fence.” This is the description of what an ordinarily prudent person would do under like circumstances. The street was not closed for travel and the board walk was an invitation to pedestrians with the implication that it was reasonably safe. While perhaps she may not have been justified in pro-
2. The permit issued on August 10, 1904, and extended to November 1,1905, by the street department of the city of Boston authorizing the defendant to obstruct for building purposes that portion of the street where the accident occurred and requiring it to maintain “ a safe and convenient way for the use of foot travellers . . . and a safe and convenient passage for public travel around” was competent evidence bearing upon the control of the defendant over the place of accident. The mere issuing of this permit, however, was no evidence of negligent maintenance of the fence by the defendant. The probative force of the instrument as to this plaintiff went no further than to indicate, unexplained, responsibility for the existence of the fence. Whether and by whom it was negligently maintained were facts which must have been proved by independent evidence bearing upon its condition at or about the time of the injury. It was therefore error to refuse to grant the second' request for instructions.
3. The sixth and seventh requests in effect asked for an instruction that if the defendant had, previous to the plaintiff’s injury, given over the entire control of the fence to Jones and Meehan, and they had assumed the charge and maintenance of it, then the plaintiff could not recover of the defendant. In substance this instruction should have been given. There was evidence tending to show facts as assumed in the requests. The owner of premises, who has parted with their control, is not liable to a third pel'son, who suffers injury through their wrongful condition, unless they were in such condition at the time of transfer of control or unless the situation causing injury was contemplated by the owner as a part of the use to which the premises were to be put. If the fence was safe at the time the entire control and responsibility for its maintenance, as between the defendant and Jones and Meehan, passed to the latter, and thereafter, solely through the negligence of the latter, the harm came to the plaintiff, then the defendant would not be responsible. It could not be ruled as law that it was within the contemplation of the defendant that the subway contractors
4. An exception is also saved by the defendant to the admission in evidence of an agreement signed by Jones and Meehan as to the control of the fence. It is not signed by the defendant and it does not appear that the defendant ever had possession of it or knew of its contents. Under these circumstances it should have been excluded. The other requests of the defendant were refused properly.
Exceptions sustained.