Chestnut v. Sawyer

• Decision Date: 26 February 1920
• Parties: CHESTNUT v. SAWYER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

235 Mass. 46

126 N.E. 273

CHESTNUT

v.SAWYER.

Supreme Judicial Court of Massachusetts, Norfolk.

Feb. 26, 1920.

Exceptions from Superior Court, Norfolk County; William Cushing Wait, Judge.

Action by Emma C. Chestnut against Carleton Sawyer. Verdict for defendant, and plaintiff excepts. Exceptions overruled.

Joseph F. Warren and Herbert A. Palmer, both of Boston, for plaintiff.

Edward S. Crockett, Francis M. Ryder, Richard W. Hale, and Grafton L. Wilson, all of Boston, for defendant.

RUGG, C. J.

This is an action of tort whereby the plaintiff seeks to recover damages for personal injuries received by her while walking from the door of the post office in Foxboro to the public street. She slipped on ice upon land of the defendant. The issues at the trial, so far as now material, were whether the defendant owed to the plaintiff any duty and whether he had done or omitted to do any act in violation of that duty. Bernabeo v. Kaulback, 226 Mass. 128, 131, 115 N. E. 279.

The defendant was the owner of the building, in which was the post office, and of the open space lying between its door and the street. A lease executed to the United States Post Office Department by the defendant was in evidence. Its terms neither imposed upon him nor relieved him from obligation to care for the open space, and by them the Post Office Department did not assume obligation to care for the open space or for any part of the building, but the defendant was obliged to keep the leased premises in repair. It does not appear whether the lease covered the open space where the plaintiff received her injury. At the close of the evidence the plaintiff presented several requests for rulings, which were denied. They covered in general the duty owed by the defendant to the plaintiff and his breach of that duty. It is said in the exceptions:

‘The court in the matters touched by these requests instructed the jury as follows.’

Four printed pages follows, wherein is apparently covered every aspect of the defendant's legal duty and his failure to perform that duty. The saving of exceptions is in these words:

‘By the refusal of the court to give the instructions asked for, and by the aforesaid instructions given, the plaintiff has been aggrieved, and she hereby excepts to the refusal of the court to give said instructions and to said instructions given.’

At the argument at the bar of this court exceptions to the refusals to grant the requests were expressly waived. The only point relied upon or argued is that there was error in this single statement in the charge:

‘Other people could invite this lady upon the premises if they had seen fit, although the person that invited her was the person that undertook to see that it was safe. It may be that you think there is a difference between the doctor [the defendant] and the plaintiff in that matter. The United States government may have been the person that invited the plaintiff on these premises. If it was, then it was the United States government that undertook the duty of seeing that they were reasonably safe, no matter to whom they belonged, if it invited her to use them.’

It is doubtful if any exception is now open to the plaintiff under these circumstances. The attention of the judge was not called to this or any other particular part...