Brennan v. Keene

• Decision Date: 07 March 1921
• Citation: 237 Mass. 556,130 N.E. 82
• Parties: BRENNAN v. KEENE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

237 Mass. 556

130 N.E. 82

BRENNAN

v.KEENE.

Supreme Judicial Court of Massachusetts, Suffolk.

March 7, 1921.

Exceptions from Superior Court, Suffolk County; Charles U. Bell, Judge.

Action by Mary A. Brennan, administratrix, against Mary A. W. Keene. There was a verdict for plaintiff, and defendant excepted. Exceptions sustained, and judgment entered for defendant.

Herbert A. Kenny, of Boston, for plaintiff.

Sawyer, Hardy, Stone & Morrison, of Boston (Gay Gleason, of Boston, of counsel), for defendant.

PIERCE, J.

This was an action of tort brought by the administratrix of the estate of Michael Brennan, to recover for his conscious suffering and death alleged to have resulted from the negligence of the defendant. At the close of the evidence the defendant filed a motion that the court direct a verdict for the defendant. The court declined to do so, and submitted ten interrogatories to the jury. The defendant duly excepted to the refusal to grant the motion and to the submission of the interrogatories. The jury answered each of the submitted questions in the affirmative, assessed the damages, and found for the plaintiff in each count by order of the court. The defendant duly excepted to the order of the court; she also excepted to the court's refusal to give certain rulings and to certain parts of the charge.

The undisputed reported evidence is that the intestate was a ‘strapping young man’ 6 feet in height, ‘and a police officer’ connected with Station 9 of the city of Boston. At 8 o'clock on the morning of July 4, 1918, he was seen in an alleyway which extends from Clifford street in the rear of houses on Warren street, ‘sitting on the steps leading up to the pustairs in the rear of his [the witness'] house’ numbered 314 Warren street. Ten minutes later he was again seen by the same witness, ‘sitting on the entrance going down into the cellar’ of the same premises. He was very sallow and pale, was holding his head, was in his shirt sleeves, had on an unbuttoned vest, and trousers that hung down with a substance upon them evacuated from his bowels. He took hold of the arm of the witness, when that person tried to arouse him, mumbling something, ‘stairs' or ‘cellar.’ He was taken in an unconscious state to the Boston City Hospital, and died there on July 7, 1918, so far as appears without regaining consciousness.

It is the contention of the plaintiff that the injury to and death of the intestate were the result of a fall down a trapdoor hole in a vacant store, owned by the defendant, at No. 302 Warren street. The medical examiner of Suffolk county made an autopsy on the body. In substance he testified he found that the injury sustained by the intestate would be consistent with a fall from a height, striking on the back of the head; that the intestate had a fractured skull; that the cause of death was the fracture of the skull and the injury to the brain; that there were no marks of violence on the face; that there was no break in the scalp; that the fracture was so extensive that it could have been produced only as the result of great violence; that ordinary violence would not produce this very extensive fracture; that an ordinary fall, or even an assisted fall-if he were knocked down on the street-would not produce such a fracture; that such a fracture could be produced only by a fall from a considerable height; that this type of fracture could not be received if the person was walking along and fell over; that the intestate must have been precipitated almost head first and landed on the back of his head; and that if he landed on his feet and then fell over, that fall would not be sufficient to produce such a fracture. He further testified that people with fractured skulls react very differently; that a good many men are rendered unconscious and remain so, and others pick themselves up and go through a lot of apparently conscious actions; and that it would be possible for a man with a fractured skull to grope along for several hundred yards.

The vacant store above referred to was one of two stores, which with a real estate office covered the entire ground floor of a building owned by the defendant. The stores, which had been vacant seven months, and the real estate office, were numbered respectively 302, 304 and 300 Warren street. The building occupies a lot of land at the corner of Warren and Clifford streets, with entrances to the stores on both of those streets. The entire second and third stories were occupied as tenements. The evidence does not furnish the dimensions of the vacant store numbered 302 Warren street, but discloses that in the floor in the rear of that store there is a hoistway with a trapdoor, 3 feet long and [237 Mass. 560]3 feet wide, distant 2 to 6 feet from the rear door on Clifford street. It also discloses that on the left of the rear room as one enters from Clifford street, a stairway, without gate or rail, next to the wall, leads down to the cellar. The rear door leading to Clifford street had a bolt on it, and there was also a key to it. The doorway in the rear of the vacant store is the first doorway on Clifford street from Warren street. The distance from this doorway to the entrance to the passageway on Clifford street is 72 feet; and the distance along the passageway in the rear of the house on Warren street is 108 feet. The passageway is 12 inches higher than the sidewalk, and there is a vacant lot adjacent to the passageway 5 feet below the sidewalk, which is reached by six wooden steps. A witness testified that the rear door of the store was open at about 7 p. m. on July 3, 1918.

Another witness testified that while standing at the corner of Warren and Clifford streets,...