175 Mass. 25 | Mass. | 1899
The defendants’ testatrix owned a building, called the Brimhall block, situated on the corner of High and Church Streets, in the town of Clinton; these streets run at right angles to each other, High Street running north and south, and Church Street east and west. The front line of the building on each street was-set back from the street line; the whole space from the face of the building to the curbing of the sidewalk was covered with concrete, and presented a uniform appearance, except for the bank or retaining wall just round the corner on Church Street, hereinafter described. On High Street the building was set back fifteen and thirty-four one-hundredths feet, the whole sidewalk being but one foot wider. On Church Street it was set back at the easterly end eleven and seventy-one one-hundredths feet, and at the westerly end ten and twenty-seven one-hundredths feet, the sidewalk outside of the defendants’ concreted area being seven and ninety-one one-hundredths feet in width; that is to say, on High Street the whole sidewalk, including the defendants’ concreted area and that within the side line of the street, was in round figures sixteen and one half feet wide, of which the defendants’ concreted area was fifteen and one half feet, and the town’s area was one foot; and on Church Street the whole sidewalk was twenty feet in width, of which the defendants’ area was twelve feet, and the town’s eight feet.
It is expressly found in the report that at the time of the accident the premises where the accident occurred were owned
The corner of the defendants’ building at the junction of the two streets was rounded so as to admit of a window being placed in the round corner wall so made. There is a sharp descent in the grade of the High Street sidewalk, beginning at a point on the face of the defendants’ building on High Street, a few feet north qf the beginning of the rounded corner, and running thence across the concreted area to the southerly curbstone of the sidewalk of Church Street. Church Street also descends rapidly going west from High Street. The grade of the concreted area next the face of the building on Church Street is lower than the concreted area at the corner of the street; this difference in grade terminates abruptly at the point on Church Street where the curve of the round corner of the building begins. At that point the defendants’ concreted area on Church Street is two feet lower than the defendants’ concreted area on the round corner of the building; the two are separated- by a bank or retaining wall, which is two feet high where it begins on the face of Brimhall block, and which runs southerly toward the south curb of the Church Street sidewalk a distance of six and ninety one-hundredths feet, where it meets the grade of the sidewalk and ends. There was no fence or guard of any kind on this retaining wall.
About eight o’clock in the evening on February 2, 1897, the plaintiff in the first case, with her husband, who was the plaintiff in the second casé, came to Clinton for the first time. They went to the store of Lucius Field and Company, in Brimhall block, on business; the door of this store is on High Street, about forty-seven feet north from the corner of Church Street. On leaving this store they proceeded to walk to a building on
The defendants contend that the whole situation, the retaining wall, the fence at the west line of the premises of the defendants’ testatrix, and the buildings below coming out to the line of the sidewalk, showed that the open area was not a part of the public street, and effectually negative any implied invitation by the defendants’ testatrix to pass over her land, and that on that ground the ruling of the presiding justice was right.
It appears from the plans and photographs made part of the bill of exceptions that Brimhall block extends on Church Street about one hundred and five feet; then comes a thirteen foot way between Brimhall block and another building of the defendants’ testatrix, called the Courant building, twenty-five feet wide; beyond this building is a building known as the Dooley building, beyond that is an alley way, and beyond the alley way is a wooden building known as the Fitch building. The Courant building is set back on the same line as that of the Brim-hall block, and the Dooley building is set back a little farther still.
The whole sidewalk, twenty feet wide, in front of the two buildings of the defendants’ testatrix, from High Street to the westerly line of the Courant building, that is, to the easterly line of the Dooley building, including the part which is within the street line and that within the line of private ownership, is concreted and uniform in appearance. ' The grade of the private concreted area in front of the Dooley building is lower than that of the eight foot sidewalk in front of it, which again
On the night of the accident the plaintiffs had been to the store of Lucius Field and Company on business. The only access to or from that store was over the defendants’ High Street area fifteen and one half feet wide. It is clear, therefore, that the plaintiffs, on' leaving Field and Company’s store and walking over the concreted area of the defendants’ testatrix fifteen and one half feet wide, for the distance of forty-seven feet to the end of Brimhall block on the corner of High and Church Streets, were doing so under an invitation from the defendants’ testatrix, and that she owed them the duty of using due care to keep that area, which was the only access to that store, in a safe condition,
The report does not state whether at the time of the accident
But, giving to the defendants’ testatrix the benefit of all that the general aspect of the whole locus would give her, there was nothing which told one in the situation of the plaintiff at the corner of High and Church Streets that the invitation under which she had been travelling up to that point had ended and that she was not invited to continue on the same concreted area which she had traversed by invitation since she left Field and Company’s store, and which continued around the corner down Church Street, uniform in appearance except for the retaining wall, to the end of the premises of the defendants’ testatrix, one hundred and forty-five feet distant. The message given by the partial contraction of the concreted area at the Fitch building one hundred and eighty feet away, thirty-five feet beyond the westerly end of the area in question, and the final contraction of it to the town sidewalk of eight feet in front of fenced gardens still farther west, would more naturally be interpreted by a man of ordinary intelligence and prudence (see Chenery v. Fitchburg Railroad, 160 Mass. 211) to be that at that point the necessity ceased for the wide sidewalk, which was rendered necessary by the more important commercial character of the buildings in the immediate vicinity of the corner where the two principal thoroughfares of the town met.
Not only is it the fact that on a fair consideration of the general aspect of the locus this is the message told to a man of ordinary prudence and intelligence, but the arrangement by the defendants’ testatrix of the sidewalk on High Street shows that it is what she intended should be understood. For one hundred and thirty feet from the corner of Church Street the buildings on High Street,.including Brimhall block, are set back fifteen and
It is evident what the defendants’ testatrix intended when she, acting in concert with her neighbors, placed Brimhall block fifteen and one half feet back from the street line and made it possible, first, to have a sixteen and one half foot sidewalk in front of her store, uniform in appearance, and, second, to throw into the street between the curbstones seven feet of the eight foot town sidewalk which reached to that point; it is evident that she intended her concreted area of fifteen and one half feet to be used as the public sidewalk, one foot only being' within the side line of the street; and the fact that for the first ninety feet the sidewalk is but sixteen and one half feet wide and for the next forty feet is twenty-three and one half feet wide, and that beyond the buildings are not set back so far and the concreted area is narrowed to fourteen feet, does not negative this intention, but says that the occasion for the wider sidewalk, partly private and partly public, ceased at that point.
There is nothing in the defendants’ suggestion that the plaintiff was cutting corners, if that were material. The plaintiff fell over the retaining wall at a point six feet out from the corner; the exact width of the sidewalk was nineteen and one half feet; she was walking about ten inches nearer the building than her husband. He therefore was well within the middle third of the sidewalk. The plaintiff was where she was invited to be.
The defendants’ testatrix having invited the plaintiffs to use the concreted area as a sidewalk, was bound to use due care to keep it in a safe condition; allowing this retaining wall to remain unfenced was, or at any rate might have been found to be,