231 Mass. 20 | Mass. | 1918
The plaintiff was injured by stepping into a hole-containing a gasoline tank, near a private driveway on the premises of Frederick S. Converse, by whom she was employed as a housemaid. One of her duties was to pick flowers for the table from the garden. The defendant delivered gasoline to Converse from a truck driven by one Stevenson in its employ; the gasoline was poured into a tank buried in a grass plot near the edge of a circular driveway. It was thought there was a leak in the tank and Stevenson hired a man to take the tank up. A round hole about four or five feet in diameter and four or five feet deep was dug, and left open and unprotected for three days; when in this condition between eight and nine o’clock on a foggy night, while the plaintiff, in company with two other housemaids employed by Converse was “ getting an airing,” she fell into the hole and was injured. She testified that she did not leave.the driveway, that the hole extended into it, and that she was injured while in the driveway. There was other evidence indicating that she fell on the lawn while on her way to get a pear from one of the trees. Stevenson, the driver of the truck, whose duty it was to sell for the defendant gasoline, oils and tanks, testified, that he informed Quinn, the defendant’s president, that he was going to “take up and, if possible, repair Mr. Converse’s tank,” and Quinn told him to “go ahead.” Stevenson paid for the excavating and reported to Quinn that Converse was satisfied with the tank; a bill for the amount paid by Stevenson was sent to Converse by Quinn. The plaintiff entered into a covenant not to sue Converse and received from him $1,500. The jury found for the plaintiff in the sum of $5,000.
The jury could have found that when injured the plaintiff was not upon the lawn, but was on the driveway. She so testified, and there was evidence that while the tank was from six inches to a
■ The defendant in doing the excavating was an independent contractor, whose duty it was to use reasonable care to guard the work, and in a proper way to protect the employees of Converse, lawfully using the driveway, from the danger of falling into the hole. If the hole was in the driveway designed and used for travel, the defendant was bound to anticipate that it was a source of danger to persons walking thereon, and to provide against what was likely to happen. Hill v. Winsor, 118 Mass. 251. Boutlier v. Malden, 226 Mass. 479.
The defendant relies on Carey v. Baxter, 201 Mass. 522, where the plaintiff was injured by falling from the side door of her tenement because of the removal of three wooden steps by a contractor who was excavating for a walk to be laid along the sidewalk in front of the house and from the street to the front door and to the side door. That case is plainly distinguishable from the case at bar. The plaintiff had been told by the landlord what was to be done; she knew that the work involved the removal of ,the steps and she could see from her tenement that the work was going on. The defendant had no reason to suppose that the plaintiff was ignorant of the condition of the walk and the removal of the steps, and he had no reason to anticipate harm to the plaintiff. It was not probable that she would attempt to use the steps when she could see to what extent the work was done and the defendant was not bound to foresee the improbable. -
In the .case at bar the plaintiff testified she had often, before this time, taken walks, passing where the tank was, though she did not remember seeing it. In using the driveway for her own convenience she was rightfully on the premises, and stood toward the defendant in the right of her employer. While the defendant had the right to dig the hole on the employer’s premises, it was liable to the plaintiff for its negligence, she being lawfully where she was. Boutlier v. Malden, supra. Massaletti v. Fitzroy, 228 Mass. 487, 492, 493 and cases cited.
It does not plearly appear how long after the opening was made
There was evidence that the plaintiff and the other maids picked fruit in the daytime and no objections had been made. Even if she were on the lawn and not on the driveway and at the time was looking for a pear, the. jury could infer that in passing over the lawn, although not invited, she was not there unlawfully so far as the defendant was concerned and could recover for its negligence. Massaletti v. Fitzroy, supra.
There was evidence that Stevenson was authorized to do the work. Before undertaking it he reported to the defendant’s president and was authorized to go on with it; moreover, he was reimbursed for the amount expended by him, and Converse paid the defendant for the work it had done. This was evidence of a ratification, and by adopting the act of Stevenson, the defendant became responsible for his conduct in performing the work. Dempsey v. Chambers, 154 Mass. 330. Nims v. Mount Hermon Boys’ School, 160 Mass. 177.
The defendant asked the judge to instruct the jury that “there is no evidence that the act of Stevenson in digging up the tank was within the scope of his employment.” As there was evidence that the act was authorized and ratified, this request was properly refused. The defendant further contends that the judge left it to the jury to find that the act of digging the hole was within the scope of Stevenson’s employment, independently of the talk be
The question whether the plaintiff accepted the $1,500 in discharge or release of Converse from all liability for the injuries received by the accident, — she having discontinued the action against him as provided in the agreement, — was a question of fact for the jury. ■ They were fully instructed on this point. The covenant not to sue Converse did not purport to release the defendant; but not being a party or privy to the instrument it could introduce oral evidence to .show that the plaintiff accepted the money in release of all claims against her employer, and on the evidence the jury could have so found; but the question was for them to decide, and they had the right to say that it was not accepted for this purpose. Matheson v. O’Kane, 211 Mass. 91. Johnson v. Von Scholley, 218 Mass. 454.
The defendant asked the court to instruct the jury, “If the jury find there is any liability on the part of ther defendant, they must consider the payment of $l,500.by Converse in mitigation of damages.” The request was refused. While the jury must have
It follows that the instruction asked for should have been given, and this exception must be sustained. The other exceptions are overruled. If within thirty days after the date of the rescript the plaintiff remits all of the verdict in excess of $3,500, judgment is to be entered for the plaintiff in the sum of $3,500; otherwise, the exceptions are sustained.
So ordered.