312 Mass. 170 | Mass. | 1942
The first action is by a child to recover for personal injuries sustained on July 11, 1939, when, being four years of age, he fell into an excavation made by the defendant’s water department in a driveway “on private premises” where this plaintiff (hereinafter called the plaintiff) resided with his parents. The second action is by the plaintiff’s father for consequential damages. Both actions are based upon alleged negligence in failing properly to guard the excavation and to warn of its existence. In each case the defendant excepts to the denial of its motion for a directed verdict in its favor.
There was evidence tending to show these facts: The driveway was located on the premises occupied by the plaintiff and his family, but one Meuse and his wife, the owners of the land next adjoining on the north, used it “by virtue of” a grant in the deed of their land of the “right to use . . . the driveway” in common with the grantor and others. The northerly line of the driveway ran parallel with and about two feet distant from a stone retaining wall on the southerly line of the Meuse lot, which was somewhat higher than the Sample lot. The wall was from four to five feet high next the street but tapered to a height of about two feet at its end farther from the street. The surface of the driveway was of “dirt.” On the day before the accident the defendant’s foreman had called at the Meuse home to investigate a complaint received from there of a leak in the water supply of the Meuse house. At about 7:30 on the morning of the accident the defendant’s employees began using a pneumatic drill upon the pavement of the street about opposite the driveway. About an hour later an employee of the defendant began digging with a pick and shovel in the driveway in order to expose the pipe which had been laid beneath the driveway to serve the Meuse house. By what right the pipe had been laid does not appear, unless the “right to use” the driveway included the right to lay a pipe there. No notice was given
We are of opinion that the judge could not rightly have ruled that there was no evidence of causal negligence on the part of the defendant. It may be that if the defendant had been requested by the owner or occupant to excavate where it did there would be difficulty in discovering any evidence of negligence merely in the manner in which the work was done. It may not always be practicable while the digging is still in progress to provide guards adequate to prevent a small child from falling into an excavation like that described. It may be that under ordinary circumstances the appearance of the place, at least in the daytime, would be sufficient warning to an adult or to a child capable of some degree of self care, and that children not so capable, when allowed upon a public street or away from home, may be expected to be accompanied by a competent custodian. See, for example, Compton v. Revere, 179 Mass. 413; Chapman v. Boston, 252 Mass. 404; Pratt v. Peabody, 281 Mass. 437, 440; Flynn v. Cities Service Refining Co. 306 Mass. 302, 304. But this case presents the peculiar feature that the jury could find that the defendant dug a deep pit upon private land without the knowledge of the owner or occupant. The jury were not obliged to believe the evidence that the plaintiff himself had been warned away. The defendant must be held to have known that children too young to exercise care for themselves with respect to dangers that would be apparent to their elders might live and play upon the premises. The plaintiff was of an age at which the jury might find it safe and proper for him to run and play with the neighbor’s children in the two adjoining yards when
We have dealt with the case as it is presented to us as one of negligence and have not considered whether the defendant might have been found to be liable as a trespasser upon land in the possession of the plaintiff’s father. See •Am. Law Inst.. Restatement: Torts, § 380.
In each case the entry will be
Exceptions overruled.