Dalton v. Great Atlantic & Pac. Tea Co.

• Decision Date: 19 May 1922
• Citation: 135 N.E. 318,241 Mass. 400
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: DALTON v. GREAT ATLANTIC & PACIFIC TEA CO.

241 Mass. 400

135 N.E. 318

DALTON

v.GREAT ATLANTIC & PACIFIC TEA CO.

Supreme Judicial Court of Massachusetts, Suffolk.

May 19, 1922.

Exceptions from Superior Court, Suffolk County; Henry T. Lummus, Judge.

Action of tort by Margaret M. Dalton, by her next friend, against the Great Atlantic & Pacific Tea Company for personal injuries sustained by contact with one of the rods of an awning maintained above the sidewalk. A motion for a directed verdict was allowed, and plaintiff brings exceptions. Judgment for plaintiff.

On motion by defendant for a directed verdict at the close of the evidence, the presiding justice stated that he would submit the case to the jury, and, if the verdict was for plaintiff, would then entertain a motion for a directed verdict. The jury returned a verdict for plaintiff, and the court, with the assent of the jury, reserved leave to enter a verdict for defendant if it should be decided that such a verdict should have been entered. Thereafter defendant moved for a directed verdict, and the motion was allowed.John A. McCaig, of Boston, for plaintiff.

Dunbar, Nutter & McClennen, of Boston John E. Peakes and Murray F. Hall, both of Boston, of counsel), for defendant.

JENNEY, J.

The plaintiff, while traveling on the sidewalk of a public way in that part of Boston known as Neponset, came in violent contact with an iron bar of a movable awning owned and maintained by the defendant, a tenant of a store adjoining the street. No question is raised as to the plaintiff's due care. The injury was received on June 18, 1918, shortly before 10 p. m. (daylight saving time).

The evidence would have warranted the jury in finding as follows: Iron rods projected horizontally over the sidewalk and one of them for some time had been bent downward about 6 inches in the center. Where the rod was bent ‘the deepest part of the bend’ was about 6 1/2 feet above the sidewalk. The awning had been kept down for several months before the accident. When it was down, the horizontal rods were tied to the upper end of perpendicular rods upon which they were designed to travel by rigid iron rings on their ends. At the time of the accident, the crossbar of the awning had dropped from place and its end near the building was about 3 1/2 feet above the sidewalk. Farther out from the building it was at such a distance above the sidewalk that the plaintiff, who was 5 feet 3 inches in height, came in contact with it.

There was in evidence the regulation of the board of street commissioners of Boston, printed in the margin.¹

It did not appear that the crossbar had been out of position for any length of time before the injury. The defendant offered evidence that, when the store closed at 6:20 p. m. the day of the accident, the awning was down over the sidewalk in a safe condition for travelers and with all its horizontal bars in a proper position to sustain it, with the ends nearest the wall of the store fastened to the top of the perpendicular bars by a rope.

Apart from legislative or municipal authorization, no person can lawfully maintain an awning over a sidewalk. Pedrick v. Bailey, 12 Gray, 161;Commonwealth v. King, 13 Metc. 115;Cushing v. Boston, 128 Mass. 330, 35 Am. Rep. 383;Aldrich v. Boston, 212 Mass. 512, 99 N. E. 329;Hoey v. Gilroy, 129 N. Y. 132, 29 N. E. 85; Hibbard, Spencer, Bartlett & Co. v. Chicago, 173 Ill. 91, 50 N. E. 256,40 L. R. A. 621. A license to maintain such a structure legalizes that form of obstruction which otherwise would constitutewhat is in legal effect a nuisance. Attorney General v. Williams, 174 Mass. 476, 483, 55 N. E. 77,47 L. R. A. 314;Union Institution for Savings v. Boston, 224 Mass. 286, 287, 112 N. E. 637. Such license affords no protection unless its terms are observed.

By the plain terms of the ordinance an awning of the kind involved must, unless otherwise ordered by the street commissioners of Boston, be kept rolled or folded against the building except when the sun shines on the part of the building on which the awning is placed, and must be erected or maintained so that its lowest part is at least 7 feet 6 inches above the sidewalk. The jury properly could have found that at the hour of the accident the awning was down and that it was an unlawful structure irrespective of its height.

A person maintaining a nuisance within a public way is liable for damages of which it is the proximate cause, wholly apart from evidence aliunde. Shipley v. Fifty Associates, 106 Mass. 194, 8 Am. Rep. 318;Stone v. Boston & Albany Railroad, 171 Mass. 536, 544, 51 N. E. 1,41 L. R. A. 794;Leahan v. Cochran, 178 Mass. 566, 60 N. E. 382,53 L. R. A. 891, 86 Am. St. Rep. 506. The question of proximate cause also arises if the case is considered on the basis that the awning was a lawful structure and that violation of the ordinance was merely evidence of negligence. Newcomb v. Boston Protective Department, 146 Mass. 596, 16 N. E. 555,4 Am. St. Rep. 354;Simpson v. Phillipsdalc Paper Mill Co., 227 Mass. 430, 116 N. E. 828;Hartnett v. Tripp, 231 Mass. 382, 121 N. E. 17.

As there was no evidence of any negligence or other wrong on the part of the defendant except by maintenance of the awning in violation of the terms of the ordinance or of the common law, the question is whether the unauthorized act was an effective and contributing cause of the injury and not merely a condition or an attendant circumstance. Berdos v. Tremont & Suffolk Mills, 209 Mass. 489, 95 N. E. 876, Ann. Cas. 1912B, 797.

Admitting that the accident would not have happened but for the wrongful or negligent act of a third person and that said act reasonably ought to have been anticipated or foreseen, the original wrongful act could have been found to have caused the accident, although the precise manner in which it occurred may have not been foreseen. McDonald v. Snelling, 14 Allen, 290, 92 Am. Dec. 768;Lane v. Atlantic Works, 107 Mass. 104; s. c., 111 Mass. 136; Stone v. Boston & Albany Railroad, supra; Butler v. New England Structural Co., 191 Mass. 397, 77 N. E. 764;Hollidge v. Duncan, 199 Mass. 121, 85 N. E. 186,17 L. R. A. (N. S.) 982;Hanley v. Boston Elevated Railway, 201 Mass. 55, 87 N. E. 197;Burke v. Hodge, 217 Mass. 182, 104 N. E. 450;Leahy v. Standard Oil Co., 224 Mass. 352, 112 N. E. 950.

The fact that a natural cause may have contributed with the unlawful or negligent act of the defendant does not relieve it from liability. Salisbury v. Herchenroder, 106 Mass. 458, 8 Am. Rep. 354.

While in ordinary cases the question of causation is for the jury, yet when upon all the evidence the court is able to say that the result of the injury was not proximate, but remote, it is for the court. Lane v. Atlantic Works, supra; Stone v. Boston & Albany Railroad, supra; Glassey v. Worcester Consolidated Railway, 185 Mass. 315, 70 N. E. 199; Butler v. New England Structural Co., supra; Farrell v. B. F. Sturtevant Co., 194...