Cunningham v. T.A. Gillespie Co.
| Decision Date | 21 April 1922 |
| Citation | 135 N.E. 105,241 Mass. 280 |
| Parties | CUNNINGHAM v. T. A. GILLESPIE CO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Exceptions from Superior Court, Suffolk County; John A. Aiken, Judge.
Action of tort for personal injuries by Patrick Cunningham against the T. A. Gillespie Company, prosecuted after plaintiff's death by Timothy F. Cunningham, administrator. Verdict for plaintiff for $1,500, and defendant brings exceptions. Exceptions sustained.
Defendant was the contractor constructing a particular section of the Dorchester tunnel which included the vicinity of plaintiff's injury on the sidewalk. It was plaintiff's contention that the sidewalk was defective because one of the flagstones was one-half inch higher than the rest of the sidewalk. Defendant requested rulings, among others, that there is no evidence that defendant had any duty to keep the sidewalk in repair or in a safe condition for travel, and that the acceptance by the city of Boston on June 26, 1917, of the work to be done under the contract relieved defendant of liability. The court refused these rulings and defendant excepted.
Samuel L. Bailen and Timothy D. Sullivan, both of Boston, for plaintiff.
Choate, Hall & Stewart and Richard C. Curtis, all of Boston, for defendant.
The plaintiff's intestate was injured on October 17, 1917, by reason of a defect in the sidewalk near the corner of West Broadway and Dorchester avenue, South Boston. In 1916 the defendant obtained a contract for building a section of the Dorchester tunnel in the vicinity of the accident, and in November of that year began the undertaking. The contract was awarded by the Boston Transit Commission. Its secretary testified that according to the records of the commission the defendant completed its work under the contract June 26, 1917, and the certificate of the chief engineer was executed on that date. It stated that the work called for in the contract with the defendant was then substantially completed, although some minor matters were to be cleared up. There was no evidence that the defendant did any work on the sidewalk or tunnel after that date. The plaintiff contended that the sidewalk was defective by reason of the defendant's negligence and was left in this condition when the defendant ceased to work on the tunnel. As we construe the record the highway was open for travel during the progress of the work and has been open continuously since June, 1917.
In the superior court the case was tried together with the case brought by the same plaintiff for the same accident against the city of Boston, and where a verdict was rendered for the defendant. In the case against this defendant the jury found for the plaintiff.
The defendant excepted to the refusal of the trial justice to give certain requests, to a portion of the instructions given to the jury, and to the refusal to grant its motion for a directed verdict.
Assuming that the contract between the defendant and the Boston Transit Commission was properly admissible in evidence; that under the contract the defendant was bound to keep the sidewalk during the progress of the work in the same condition it was in when the work was begun; that it was responsible during this time to the city of Boston for any accident arising from the unsafe condition of the surface of the street or sidewalk and was to keep the sidewalk in a safe condition for travel for the period of six months after the completion of the work-at the time when the plaintiff's intestate was injured, October 17, 1917, the defendant had ceased to labor under the contract; the work was no longer under its supervision; the tunnel had been accepted by the transit commission; the defendant's contract had been practically completed in June, 1917, and the care of the street above the tunnel was in the exclusive control of the city of Boston. The defendant of course remained bound to the Boston transit commission according to the terms of his contract, but after June 26, 1917, when the engineer's certificate of completion was given it had no further control over the sidewalk. This control was in the city of Boston upon which rested the duty of keeping the highway safe and convenient for travel. The control having...
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Holmes v. T. M. Strider Co.
... ... Cas ... 226; 45 C. J. 884; Wharton on Negligence, sec. 439; ... Cunningham v. Gillespie, 241 Mass. 280, 135 N.E ... 105; First Presbyterian Congregation v. Smith, 163 ... ...
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McDonough v. Whalen
...relation with them after their work was completed and accepted by the owner or their employer. 5 In Cunningham v. T. A. Gillespie Co., 241 Mass. 280, 135 N.E. 105 (1922), this court applied such a rule of nonliability to an independent contractor who had completed and turned over the contro......
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Romano v. Rossano Const. Co.
...111 P. 899, 32 L.R.A.,N.S., 968. We assume that Construction, at least while still carrying on the work (cf. Cunningham v. T. A. Gillespie Co., 241 Mass. 280, 282, 135 N.E. 105, as affected by Flaherty v. New York, N. H. & H. R. R. Co., 337 Mass. 456, 460, 149 N.E.2d 670), would be liable f......
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Pastorelli v. Associated Engineers, Inc.
...control of the premises passes from contractor to contractee upon acceptance of the project. See, e. g., Cunningham v. T. A. Gillespie Co., 1922, 241 Mass. 280, 135 N.E. 105; but see Flaherty v. New York, N. H. & H. R. Co., 1958, 337 Mass. 456, 149 N.E.2d 670. The trend of the law is, howev......