Chronopoulos v. Gil Wyner Co.
| Decision Date | 10 October 1956 |
| Citation | 137 N.E.2d 667,334 Mass. 593 |
| Parties | Konstantine J. CHRONOPOULOS and another v. GIL WYNER CO., Inc. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Paul E. Troy, Boston, for plaintiff.
Walter F. Henneberry, Boston, for defendant.
Before WILKINS, C. J., and RONAN, SPALDING, WILLIAMS, COUNIHAN, WHITTEMORE and CUTTER, JJ.
This is an action of tort wherein the plaintiff Konstantine J. Chronopoulos (hereinafter referred to as the plaintiff) seeks to recover for personal injuries alleged to have been caused by the defendant's negligence, and the plaintiff's father seeks consequential damages. The case was submitted to a jury who returned verdicts for both plaintiffs. The case comes here on the defendant's exceptions to the denial of its motion for directed verdicts and to the refusal of the judge to grant two of its requests for instructions.
On March 22, 1950, the defendant, pursuant to a contract with the metropolitan district commission, was engaged in the installation of a water main in Melrose along a course surveyed by the commission. Excavating for the laying of the pipe had been going on for some time prior. The excavation was within the confines of the Lynn Fells Parkway (a parkway under the commission's control) until it reached a point near Tremont Street. There it crossed Tremont Street, entered land owned by the park department of Melrose (known as Ell Pond Park), and continued through the park land, which was on the south side of the parkway, up to the intersection of Melorse and Crystal Streets. The distance from Tremont Street to the intersection of Melrose and Crystal Streets was approximately 2,250 feet. The distance from a point in front of Melrose High School, which faced the parkway on the north side, was 1,026 feet.
The plaintiff, aged seventeen or eighteen, was a senior at Melrose High School. Early in the afternoon of March 22, 1950, after school had closed, the plaintiff and three of his companions were on their way home. The usual route, and that pursued on the day of the accident, was to walk along the north side of the parkway to the intersection of Melrose and Crystal Streets, then to cross the parkway and proceed south along one of these streets to their respective homes. At this time a deep trench, which had been dug by the defendant, extended all the way across the entrance of Crystal and Melrose Streets on the south side of the parkway and continued up the parkway beyond these streets.
When the plaintiff and his companions arrived at the trench they observed a structure running across it which may be described as follows. Two logs extended across the trench from the parkway side to the Crystal Street side. On top of these logs were two more logs which ran lengthwise with the trench. Extending across the trench and supported by the logs were three planks. One plank ran from the sidewalk of the parkway to the first lengthwise log. The second plank ran from the first lengthwise log to the second. The third ran from the second log to the Crystal Street side of the trench. The second plank was to the left or east of the first and third. The ends of these planks overlapped and extended two or three feet beyond the supporting logs. The planks were about ten or twelve inches wide, about three inches thick, and ten to twelve feet in length. There were no hand rails or guards on either side of the structure. At the time of the accident men were working in the area both along and in the trench. Along both sides of the trench there were piles of dirt, lumber, pipes, and pieces of machinery; but opposite the parkway side of the structure 'the piles of dirt had been flattened out * * * [and] it was about level.' There was evidence that the first and third planks were secured but that the second plank was not secured. According to one of the plaintiff's companions 'there was no place [other than this structure] where he could cross the excavation from the parkway into Melrose and Crystal streets on the south and east so far as he could see.'
Upon arriving at the structure, the location of which was about twenty-five feet west of the entrance to Crystal Street, the plaintiff and his companions proceeded to cross it. Prior to doing so they had observed twenty to thirty children crossing it. Three of the plaintiff's companions preceded him and crossed safely. However, when the plaintiff reached the far end of the second plank it 'tilted up' and both he and the plank fell into the trench, and the plaintiff was injured. There was no barricade or sign at the point where the plaintiff and his companions crossed the structure.
The defendant conceded that it was in 'control of the entire job.' And it was agreed that the public had a right to use and pass over Ell Pond Park. Under its contract with the metropolitan district commission the defendant agreed to 'provide and maintain at * * * [its] own expense such temporary bridges as may be necessary.'
The pivotal question is the status of the plaintiff when he was injured. If he was a trespasser or a bare licensee he cannot, of course, recover, for there is no evidence of wanton or reckless conduct on the part of the defendant. Couto v. Trustees of New York, New Haven & Hartford Railroad Co., 312 Mass. 23, 27, 42 N.E.2d 802; Sheehan v. Goriansky, 317 Mass. 10, 14-15, 56 N.E.2d 883. The plaintiff does not argue the contrary and bases his case on negligence. To recover for ordinary negligence the plaintiff is compelled to rely upon an invitation to him as a member of the public. Sweeny v. Old Colony & Newport Railroad Co., 10 Allen 368; Davis v. Central Congregational Society, 129 Mass. 367; Murphy v. Boston & Albany Railroad Co., 133 Mass. 121; Hanks v. Boston & Albany Railroad Co., 147 Mass. 495, 18 N.E. 218; Holmes v. Drew, 151 Mass. 578, 25 N.E. 22; Plummer v. Dill, 156 Mass. 426, 430, 31 N.E. 128; Chenery v. Fitchburg Railroad Co., 160 Mass. 211, 213, 35 N.E. 554, 22 L.R.A. 575; Moffatt v. Kenny, 174 Mass. 311, 314-315, 54 N.E. 850; D'Amico v. City of Boston, 176 Mass. 599, 58 N.E. 158; Conroy v. Allston Storage Warehouse, Inc., 292 Mass. 133, 135, 197 N.E. 454. See Prosser on Torts (2d ed.) § 78; James, Tort Liability of Occupiers of Land,...
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