Galligan v. Metacomet Manuf'g Co.

Decision Date23 February 1887
PartiesGALLIGAN, per pro. amie, v. METACOMET MANUF'G CO.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

OPINION TEXT STARTS HERE

Tort to recover for personal injuries, alleged to have been sustained on May 25, 1885, by the plaintiff, then a child of about seven years of age, in falling over a precipice in Fall River, upon land alleged to belong to the defendant, and claimed by the plaintiff to have been the defendant's mill-yard, while the plaintiff was at play therein. This action was brought in the name of the plaintiff's mother, as next friend, her father being dead. Trial in the superior court, before BARKER, J., who directed a verdict for the defendant, which was returned, and the plaintiff alleged exceptions. The facts are stated in the opinion.

Morton & Jennings, for defendant.

The plaintiff's case depends upon her proving that the defendant was the owner of the place where she was injured; but the evidence does not disclose any ownership of the same by the defendant. The plaintiff must show that the gate was left open and kept open by the carelessness or negligence of defendant, and that is not shown by the evidence. Even if it did appear that the defendant did own the vacant lot where the plaintiff was injured, and had left the gate open, the defendant is not liable. The defendant did not invite plaintiff upon the vacant lot. The plaintiff was a trespasser. The defendant owed no duty, and was under no obligation, to the plaintiff. It was not bound to put up or maintain a gate or fence; and if it did put up a gate or fence, it was under no obligation to the plaintiff to keep the gate shut or the fence in repair. Southcote v. Stanley, 1 Hurl. & N. 246; Gautret v. Egerton, L.R. 2 C.P. 371; Bolch v. Smith, 7 Hurl. & N. 736; Hardcastle v. South Yorkshire R. Co., 4 Hurl. & N. 67; Hounsell v. Smyth, 7 C.B.(N.S.) 731, 97 E.C.L. 729; Venderbeck v. Hendry, 34 N.J.Law, 467; Gillespie v. McGowan, 100 Pa.St. 144; Morrissey v. Eastern R. Co., 126 Mass. 377;Severy v. Nickerson, 120 Mass. 306;Sweeney v. Old Colony R. Co., 10 Allen, 372, 373;McAlpin v. Powell, 70 N.Y. 126;Nicholson v. Erie Ry. Co., 41 N.Y. 525;Howland v. Vincent, 10 Metc. 371.

E.L. Barney, for plaintiff.

The plaintiff claims that said place was dangerous; that the defendant owned and controlled the lot of land, and had thrown it open to the public, and so expressly and impliedly invited, allowed, and suffered it for five years past, during every day in the week, to pass and repass along and upon said lot, and for children to play thereon. It was negligence in the defendant to permit that gate to be open, and allow men, women, and children to enter, pass along, and over, and play upon, a lot where so dangerous a place existed. No person has a right to open or use his premises so as to endanger the life, limb, and health of his fellow-beings. If one has a pit, precipice, or dangerous spot upon his land, it is culpable and actionable negligence to open it, so as to invite another to enter, or mislead one to enter, or to induce or invite one to enter thereon; and one so invited, who is injured when upon said lot, using due care, can maintain an action therefor. The fact that he is a trespasser does not preclude a recovery. Birge v. Gardner, 19 Conn. 507;Johnson v. Patterson, 14 Conn. 1;Daley v. Norwich R. Co., 26 Conn. 591;Bush v. Brainard, 1 Cow. 78;Koons v. St. Louis, 65 Mo. 592; Railroad Co. v. Stout, 17 Wall. 657;Norris v. Litchfield, 35 N.H. 271;Sweeney v. Old Colony R. Co., 10 Allen, 368;Spurr v. Shelburne, 131 Mass. 429;Mellen v. Morrill, 126 Mass. 546;Mistler v. O'Grady, 132 Mass. 139;Marble v. Ross, 124 Mass. 44;Learoyd v. Godfrey, 138 Mass. 315; Bird v. Holbrook, 4 Bing. 629; Loomis v. Terry, 17 Wend. 496;Meibus v. Dodge, 38 Wis. 300;Hooker v. Miller, 37 Iowa, 613;Kansas R. Co. v. Fitzsimmons, 22 Kan. 686. See Lane v. Atlantic Works, 111 Mass. 136;Marble v. Ross, 124 Mass. 44;Eaton v. Fitchburg R. Co., 129 Mass. 364. The plaintiff was a minor, and was using due care, and used a child's instincts, judgment, and caution; at least, it was a question of fact for the jury to decide. Mattey v. Whittier Mach. Co., 140 Mass. 337, 4 N.E.Rep. 575; McDonough v. Metropolitan R. Co., 137 Mass. 210;Gibbons v. Williams, 135 Mass. 333; McGeary v. Eastern R. Co., Id. 363; O'Connor v. Boston & L.R. Co., Id. 352; Murley v. Roche, 130 Mass. 330;Lynch v. Smith, 104 Mass. 52. The mother was using due care. There was evidence to go to the jury. Gibbons v. Williams, 135 Mass. 333. If there was any evidence of defendant's negligence, it was a question for the jury. There was evidence of the ownership and control of the lot to be submitted to the jury. If there was any evidence for the jury, the case should have been submitted to the jury. It is not a question of law if the evidence was sufficient.

C. ALLEN, J.

The plaintiff seeks to recover damages from the defendant corporation for an injury sustained by her from falling down a precipitous place in a vacant lot where she was playing; the lot being in the rear of the premises where she lived, and separated therefrom by a picket fence, with a gate. But we are unable to...

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3 cases
  • Savannah, F. & W. Ry. Co. v. Beavers
    • United States
    • Georgia Supreme Court
    • May 21, 1901
    ... ... L.R.A. 448; Holbrook v. Aldrich, 168 Mass. 15, 46 ... N.E. 115, 36 L.R.A. 493; Galligan v. Manufacturing Co ... (Mass.) 10 N.E. 171; Breckenridge v. Bennett (Com ... Pl.) 7 Kulp, ... ...
  • Galligan v. Metacomet Mfg. Co.
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • February 23, 1887
  • Shea v. Gurney
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    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • March 1, 1895
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