Conroy v. Allston Storage Warehouse, Inc.
| Decision Date | 16 September 1935 |
| Citation | 197 N.E. 454,292 Mass. 133 |
| Parties | CONROY v. ALLSTON STORAGE WAREHOUSE, Inc. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Exceptions from Superior Court, Suffolk County; Fosdick Judge.
Action of tort by Pearl I. Conroy against Allston Storage Warehouse Incorporated. Judgment for defendant, and plaintiff brings exceptions.
Exceptions overruled.
B. Goldman and H. Krinsky, both of Boston, for plaintiff.
E. J. Sullivan, of Boston, for defendant.
In her declaration the plaintiff alleges that on September 4, 1933, while she was lawfully passing by invitation of the defendant on a sidewalk adjacent to Harvard Avenue, a public highway in Boston, she was caused to fall and sustained injuries by reason of a defect in a curbing owned and controlled by the defendant, all owing to the negligence of the defendant.
The defendant owned and operated a storage warehouse which was located on a rear lot east of Harvard Avenue. It was connected with the avenue by an open passageway about sixty-five feet long and ten feet wide. The defendant owned the southerly half of the passageway, extending to the street line. It acquired its title in 1915. In 1917 blocks of stores were erected on the front lots facing Harvard Avenue on both sides of the passageway. These stores were placed three feet back from the easterly line of the avenue, and the three foot space between the front walls of the stores and the avenue line on each side of the passageway was covered with concrete level with and similar to the adjoining public sidewalk. But as the level of the passageway was six inches below the sidewalk level, there was a curb crossing the sidewalk at a right angle at each side of the depression where the prolongation of the passageway cut through the sidewalk. When the three foot strip in front of the new building on the south side of the passageway (referred to as the Price property) was concreted, a concrete curb six inches high, seven inches wide and three feet long was installed at the edge of the passageway as a continuation easterly of the curb which extended across the public sidewalk. Its top was level with the surface of the concrete on the three foot strip and the sidewalk. This piece of curbing was so placed that only the southerly half of it three and one half inches wide was on the Price property and the northerly half, of the same width, was on that part of the passageway owned by the defendant, the boundary line running lengthwise through the center of the curbing. The defendant did not know that part of the curbing encroached upon the defendant's land.
The plaintiff, who had been looking in the windows of the stores on the Price property, was injured by stepping into a broken place which extended across this piece of curbing, including the half of it on the defendant's land.
The trial judge found that one looking at the three foot private sidewalk on the Price land would observe nothing to indicate that it was not part of the public sidewalk; that the tenant of the Price store next to the passageway used a part of it for the display of fruits and vegetables; that passers-by are invited and induced to use it by the owner or tenants of the Price property; that the defendant had nothing whatever to do with the building of the curbing, gave no permission for it express or implied and never assumed control or management of it, nor did anything toward its removal; that ‘ It was simply allowed to remain and nobody connected with the defendant ever had anything to do with it at all’ ; that it did not appreciably hinder the use of the passageway and was of no benefit to the defendant; that ‘ in no way did the defendant expressly or impliedly invite or induce the public to make use of the curbstone in question.’ He ruled that the defendant was under no obligation to keep the encroaching curbing reasonably safe for the plaintiff's use and found for the defendant.
It is apparent that the plaintiff cannot recover if she was a trespasser or a bare licensee. Sweeny v. Old Colony & Newport R. Co., 10 Allen, 368, 87 Am.Dec. 644; McIntire v. Roberts, 149 Mass. 450, 22 N.E. 13,4 L.R.A. 519, 14 Am.St.Rep. 432; Stevens v. Nichols, 155 Mass. 472, 29 N.E. 1150,15 L.R.A. 459; Richardson v. Whittier, 265 Mass. 478, 164 N.E. 384. She is compelled to rely upon an invitation by the defendant to her as a member of the public or, as it has sometimes been called, a ‘ representation’ that its land was a part of the street. Moffatt v. Kenny, 174 Mass. 311, 315, 54 N.E. 850. The judge has found that the defendant did not invite the public.
The question before us is not whether the evidence would have supported a contrary finding, but whether as matter of law it required a contrary finding. We think it did not. Extending an invitation or making a representation is essentially a voluntary, affirmative act. It is not merely a result of circumstances or conditions produced by others without the knowledge or consent of the alleged inviter or person making the representation. Furey v. New York Central & Hudson R R. Co., 67 N. J. Law, 270, 274, 275, 51 A. 505, cited in Frear v. Manchester Traction, Light & Power Co., 83 N.H. 64, 68, 139 A. 86; Kruntorad v. Chicago, Rock Island & Pacific R. Co., 111 Neb. 753, 197 N.W. 611. It may be made manifest by words or by deeds. One method of manifesting it by deeds is by so constructing or maintaining one's premises as to indicate to a passerby that he is expected to enter. Clearly the judge was justified in finding that the owner of the Price lot, who had constructed the three foot sidewalk and curbing as if they were a part of the...
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