Reardon v. Thompson

• Citation: 149 Mass. 267,21 N.E. 369
• Parties: REARDON v. THOMPSON.
• Decision Date: 11 May 1889
• Court: United States State Supreme Judicial Court of Massachusetts

149 Mass. 267

21 N.E. 369

REARDON v. THOMPSON.

Supreme Judicial Court of Massachusetts, Suffolk.

May 11, 1889

COUNSEL

W.N. Osgood, for plaintiff.

J.A Maxwell and J.D. McLaughlin, for defendant.

OPINION

HOLMES, J.

This is an action for personal injuries caused by the plaintiff's falling into a hole which was dug, we will assume, by the defendant, and which was nine inches in the defendant's land, and extended nine inches into the land of a neighbor Mrs. Appleton, by her license. The land in question was a strip eight feet wide, running back from Pope street, in East Boston, between the defendant's house and Mrs Appleton's. Of this eight feet, nine inches only belonged to the defendant, and seven feet three inches to Mrs. Appleton. The plaintiff was going to another house of the defendant, to which the proper entrance was on the other side. So far as appears she was on Mrs. Appleton's land at the time of the accident.

The argument for the plaintiff is based on the assumption that she was invited to pass over the eight-foot strip. But there is no evidence that she was invited there either by the defendant or by Mrs. Appleton. The failure, if there was any, to prohibit the use of the strip, was not an invitation to use it. Galligan v. Manufacturing Co., 143 Mass. 527, 10 N.E. 171. Neither were the facts that the houses were near together, and that the only approach to the rear house directly from Pope street was over the strip. The defendant's lawful obstruction of her own land was not an invitation to go upon Mrs. Appelton's, and Mrs. Appleton's partial obstruction of her land was not an invitation to persons visiting the defendant's tenants to go upon the unobstructed part. We must assume that there was a lawful passage from the rear house to some street. The defendant was under no obligation to furnish short cuts from every street in the neighborhood. This is not a case like Toomey v. Sanborn, 146 Mass. 28, 14 N.E. 921, where a third person was held liable for opening a hole in a private way. The fair conclusion from the plaintiff's evidence is that she was a trespasser.

But if we assume that the jury might have found that there had been such use of the strip, and such acquiescence on the part of the owners, as to imply a license, still the plaintiff cannot recover. No doubt a bare licensee has some rights. The land-owner cannot shoot him. It has been held that an owner would be liable for negligently bringing force to bear upon the licensee's person; as by running him down without proper warning. Byrne v. Railroad Co., 104 N.Y. 362 10 N.E. 539; Taylor v. Canal Co., 113 Pa.St. 162, 175, 8 Atl.Rep. 43. Compare Metcalfe v. Steam-Ship Co., 147 Mass. 66, 16 N.E. 701; Batchelor v. Fortescue, L.R. 11 Q.B. Div. 474. It is not necessary to say that no species of trap could...