275 Mass. 422 | Mass. | 1931
This is an action of tort for personal injuries alleged to have been caused by negligence of the defendant, which owns and operates an open air amusement park containing about twenty-five acres and located on the Charles River, in Newton. It provides for the entertainment of the public numerous attractions, including a zoo, athletic field, music, sporting, recreational and picnicking facilities, and it advertises these attractions recommending the park as a desirable place for women and children. On the day of the plaintiff’s injury about nine thousand people visited the park. The defendant, for a consideration, permitted John S. Paine to carry on within the park the business of selling rides on ponies to children, and designated as the place for the rides a gravel footpath, about ten feet wide, which runs along a narrow peninsula and then around a small body of land known as the “island,” and which was also used by patrons as a promenade. The ponies, about twelve in number, were kept in an enclosure or tied to a fence near the path, and patrons hiring them would ride upon them across the neck of land, around the island and back to the starting point. The plaintiff, taking her six year old child with her, paid admission to the park and went to the starting point and hired a pony.
The manager of the defendant testified that if he thought persons receiving concessions were not conducting their business properly he would tell them what they should do, and that he tried to take every precaution to prevent ponies unattended from galloping down the paths where people walked. A witness called by the plaintiff testified that after the accident she heard the manager of the defendant say to the son of the owner of the ponies, “How many times have I told you not to let those boys ride on those ponies unattended.” There was evidence that at times before the accident the larger children had been seen riding ponies unattended.
The defendant’s exceptions to evidence have not been argued and are treated as waived.
The owner owes a duty to those coming upon his premises by his invitation to use care to see that the premises are kept in a reasonably safe condition for the purposes for which they are arranged. Blanchette v. Union Street Railway, 248 Mass. 407, 412. Cruickshank v. Brockton Agricultural Society, 260 Mass. 283, 284. Bottcher v. Buck, 265 Mass. 4, 6. As a general rule the owner of property is not liable for injuries caused by the negligent acts upon his land of an independent contractor. Davis v. John L. Whiting & Son Co. 201 Mass. 91, 93. Pickett v. Waldorf System, Inc. 241 Mass. 569, 570. An exception to this rule exists when
Exceptions overruled.