389 Mass. 1005 | Mass. | 1983
The defendant had invited his ten year old nephew and the eleven year old plaintiff to his home. After returning from taking the boys fishing, the defendant left his home, front door closed but unlocked, with the boys sitting on the front steps and waiting to be picked up by the mother of the nephew.
The plaintiff and the nephew reentered the house, went into an upstairs bedroom, and removed a loaded rifle from an unlocked bedroom closet. The firearm, held by the nephew, discharged and struck the plaintiff.
A firearms expert testified that the firearm could have been secured easily and inexpensively. The case was tried on the theory that the plaintiff was a lawful visitor on the defendant’s premises.
1. The question of negligence is one for the jury. See Zezuski v. Jenny Mfg. Co., 363 Mass. 324, 327 (1973). The trial judge may set aside a ver
2. The application of the duty owed to trespassing children, G. L. c. 231, § 85Q, to the facts of the instant case has been raised by the plaintiff for the first time on appeal. Neither the original complaint nor the amended complaint contains any allegations of any statutory or common law duty to the plaintiff as a trespassing child. No objection was taken by the plaintiff to the judge’s instructions to the jury that the standard of care was that owed to lawful visitors.
An issue raised for the first time at the appellate level need not be considered by us. See International Fidelity Ins. Co. v. Wilson, 387 Mass. 841, 851 (1983); Penney v. First Nat'l Bank, 385 Mass. 715, 718 n.2 (1982); Royal Indem. Co. v. Blakely, 372 Mass. 86, 88 (1977); American Coated Fabrics Co. v. Berkshire Apparel Corp., 361 Mass. 165, 168 (1972). Nor can we perceive how G. L. c. 231, § 85Q, is applicable to the facts of this case where there was no claim that the plaintiff was a trespasser.
The motion for a new trial was properly denied.
Order affirmed.