Stevens v. Nichols

• Decision Date: 24 February 1892
• Citation: 29 N.E. 1150,155 Mass. 472
• Parties: STEVENS v. NICHOLS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

155 Mass. 472

29 N.E. 1150

STEVENS v. NICHOLS.

Supreme Judicial Court of Massachusetts, Suffolk.

February 24, 1892

COUNSEL

E.O. Achorn, for plaintiff.

M Storey and J.L. Thorndike, for defendants.

OPINION

LATHROP J.

This case comes before us on the plaintiff's exception to the ruling of the justice who presided at the trial in the superior court, that on the declaration and the plaintiff's opening the action could not be maintained. The declaration, so far as material to the questions presented at the argument, alleged that the defendants on the day of the accident were, and had been for a long time lessees and occupants of an estate on Atlantic avenue, in Boston; that the defendants maintained a way or street down by their premises, "leading out of Atlantic avenue, and extending to other premises beyond; that said street was in all particulars like the public streets of the city of Boston, being paved with granite blocks and having sidewalks and to all appearances was a public thoroughfare; that the defendants had placed no sign or notice of any kind upon or about said street *** which would give warning to the plaintiff or to the public that said street was private property or dangerous, but had erected a granite curbing out into said street, extending one-half the distance across the same, on a line with the rear of their estate, said granite curbing being from six to seven inches above the grade of the paving; that said obstruction was dangerous, both by day and by night, to all persons who entered upon or passed through said street; that on or about said day the plaintiff had business that called him to the premises that lie beyond the estate of the defendants on said street, and, supposing and assuming that said street was a highway, and being induced by the acts and omissions of these defendants to so suppose and assume, entered in and upon said street to drive through the same; that said obstruction was covered by snow at said time, and the plaintiff was unable to see the same, and, while in the exercise of due care, his sleigh struck said granite curbing," and he was thrown out and injured. The opening of the plaintiff's counsel added but little to the declaration. It stated that "the snow lay perfectly level" where the curb-stone was; that the plaintiff was driving through the defendants' way "into the way lying beyond, of which it was an extension," to reach the works of the company for which he was working. It also stated that, before the defendants controlled the way under the written lease, they owned the premises, erected the building, paved the way, and put in the curb-stone; "that ever since this building and other buildings have been erected there the public made use of that way as they would use any other street in the city,--that is, as much as they had occasion to pass down there with teams or on foot.

It does not appear that the plaintiff had any right in the way unless he had it as one of the public. There is no allegation or statement that the plaintiff had ever used the way before, or that he knew the way was paved, and noticed whether there was a sign or not. Indeed, if he was then using the way for the first time, the fair inference would be from the statement of the condition of the snow that the fact that the way was paved was unknown to him until after the accident, and did not operate as an inducement to enter the way. The declaration contained no allegation as to any use by the public of the way; and the statement in the opening of counsel, that the public made use of that way, was qualified by the words, "that is, as much as they had occasion to pass down there with teams or on foot." It is difficult to see how vehicles of any description could, when the paving was sufficiently visible to act as an inducement, go over that portion of the way which the defendants controlled. Without laying stress upon these points, we are of opinion that the declaration and the opening of the plaintiff's counsel do not show that there was any breach on the part of the defendants of any duty which they owed the plaintiff. The defendants were not obliged to put up a sign notifying travelers on the public street that the passage-way was not a public way. Galligan v. Manufacturing Co., ...