Churchill v. Holt

• Citation: 127 Mass. 165
• Court: United States State Supreme Judicial Court of Massachusetts
• Decision Date: 10 July 1879
• Parties: William W. Churchill & others v. Reuben L. Holt & others

127 Mass. 165

William W. Churchill & others v. Reuben L. Holt & others

Supreme Court of Massachusetts

July 10, 1879

Suffolk.

Case to stand for trial.

C. R Train & J. O. Teele, for the plaintiffs.

A. A Ranney, for the defendants.

OPINION

Morton J.

The plaintiffs were the lessees and occupants of a building on Winter Street, a crowded thoroughfare in the city of Boston. Connected with the building there was a hatchway in the sidewalk, leading into the basement. On March 31, 1875, one Julia Meston, a traveller upon the street, fell into the hatchway, which had been left open and unguarded, and was injured. She brought an action against these plaintiffs alleging that she was injured by reason of their negligence in keeping the covering of the hatchway in an insecure condition, in allowing it to decay and become ruinous, and in allowing the hatchway to be uncovered, in which action she recovered a judgment for damages. The plaintiffs have brought this action to recover the amount of such judgment paid by them, on the ground that the hatchway was left uncovered, thus rendering the street dangerous, by the negligent and wrongful act of a servant of the defendants.

One ground taken by the defendants in this action is, that the injury was caused by the joint negligence of the plaintiffs and defendants, that they were joint tortfeasors, and therefore, that there is no right to indemnity or contribution between them. This subject was considered in the recent case of Gray v. Boston Gas Light Co., 114 Mass. 149, and the decision in that case covers the questions raised in the case at bar. As there stated, the rule that one of two joint tortfeasors cannot maintain an action against the other for indemnity or contribution, does not apply to a case where one does the act or creates the nuisance, and the other does not join therein, but is thereby exposed to liability; in such case, the parties are not in pari delicto as to each other, though as to third persons either may be held liable. In the case at bar, it was not negligent or wrongful for the plaintiffs to have a suitable hatchway extending into the sidewalk, or to open it at proper times, taking care to provide barriers or other warnings to prevent danger to travellers on the street. The negligence which made them liable to the person injured was, that they allowed the hatchway to remain open without proper barriers or other warning. As...