Cadwell v. Slade

• Decision Date: 26 February 1892
• Citation: 30 N.E. 87,156 Mass. 84
• Parties: CADWELL v. SLADE et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

156 Mass. 84

30 N.E. 87

CADWELL v. SLADE et al.

Supreme Judicial Court of Massachusetts, Suffolk.

February 26, 1892

During trial plaintiff discontinued against Franklin M. Slade. It was admitted that defendants Anna M. and Martha L. Slade were the owners of the building at the time plaintiff received his injuries, and that Franklin M. Slade was their tenant at will. There was evidence that plaintiff was employed by one Charles Hurley to assist in removing a number of bakers' troughs manufactured by Slade for Hurley, and that plaintiff, while thus engaged, stepped into the hole, and was severely injured; that plaintiff was in the exercise of due care; that the hole was uncovered; that there had never been any barrier around the hole at any time; and that it had been in the floor for 10 years before the accident. Anna M. Slade, called by plaintiff as a witness testified that she never knew of the hole until after the injury, and this testimony was not contradicted. At the close of plaintiff's case defendants asked the court to rule that on the evidence the action could not be maintained which the court did, and ordered a verdict for defendants.

COUNSEL

R.W Shea and Bartlett & Anderson, for plaintiff.

Stearns & Butler, for defendants.

OPINION

LATHROP J.

The hole in the floor through which the plaintiff fell was used for the passing of boards and other material from that floor to another. Although no cover had ever been made for the hole, and no scuttle constructed to cover it, it was usually covered by pieces of plank. The accident does not appear to have been caused by any insufficiency in the cover, but owing to the fact that the hole was not at that time covered at all. The case does not therefore come within the doctrine of Dalay v. Savage, 145 Mass. 38, 12 N.E. 841. The hole cannot be said to be a nuisance in and of itself. It was obviously necessary for the business of the occupier, and the fault, if any, was that of the tenant in not having it guarded or covered, or in not giving warning at the time the plaintiff was using the building. Mellen v. Morrill, 126 Mass. 545; Clifford v. Cotton Mills, 146 Mass. 47, 49, 15 N.E. 84.

The plaintiff further contends that there was a duty imposed on the defendants by St.1888, c. 367, §§ 3, 4. These sections amend sections 108 and 109, respectively, of the Statutes of 1885, c. 374; and they relate to shafts or hoistways for freight or passenger...