Dalin v. Worcester Consol. St. Ry. Co.

• Decision Date: 21 June 1905
• Citation: 188 Mass. 344,74 N.E. 597
• Parties: DALIN v. WORCESTER CONSOL. ST. RY. CO. (two cases).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

188 Mass. 344

74 N.E. 597

DALIN v. WORCESTER CONSOL. ST. RY. CO. (two cases).

Supreme Judicial Court of Massachusetts, Worcester.

June 21, 1905

COUNSEL

Grosvenor Calkins, for plaintiff.

Francis H. Dewey, Chandler Bullock, and Chas. C. Milton, for defendant.

OPINION

MORTON, J.

These are two actions of tort founded on alleged negligence on the part of the defendant.The first is an action by the plaintiff, as administrator of his son, a boy of six years and two months, to recover for personal injuries, and the second is an action by the father to recover for loss of services and medical and funeral expenses.At the close of the plaintiff's evidence the court, on defendant's motion, directed a verdict for it in each case.The cases are here on exceptions by the plaintiff to this ruling.

The defendant owned a five-tenement block in Worcester.It had a car barn extending along one side of and in the rear of the block.The roof of the barn was covered with gravel, and a portion of it was floored with wooden boards and inclosed with a picket fence.Children of the families living on the second and third floors played in this inclosure, which was also used by the tenants in the second story as a place for drying clothes.There was also within the inclosure a garbage chute, used by all of the tenants of the building, and a flight of stairs leading to a passageway which led to the street, which was likewise used by the tenants.The passageway was roofed over and lighted in part by a skylight outside of the inclosure.The accident occurred June 17, 1901, and was occasioned by the child's falling through this skylight.In April the end of the fence adjoining the garbage chute, and a portion of the back of the fence, had been removed by the defendant in connection with repairs on the roof of the barn, and had not been replaced at the time of the accident.There was testimony tending to show that, after the fence was thus removed, children played on the roof outside of the inclosure, and had been seen by employés of the defendant, and had been ordered by the superintendent to keep off.On June 17th the boy's mother was employed to wash for her sister, who occupied the entire third floor, and, with the consent and at the invitation of the sister, the boy's mother arranged to have the boy spend the day with her at her sister's.During the afternoon the boy played with other children in the tenement and...