Delory v. Canny

• Decision Date: 07 May 1887
• Citation: 144 Mass. 445,11 N.E. 656
• Parties: DELORY v. CANNY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

144 Mass. 445

11 N.E. 656

DELORY v. CANNY.

Supreme Judicial Court of Massachusetts, Suffolk.

May 7, 1887

COUNSEL

F. Paul, for plaintiff.

In order to maintain her action, plaintiff was bound to prove (1) that the duty of maintaining the coal-hole and its cover in a safe condition was upon the defendant; (2) that there was a breach of said duty by the defendant, i.e., that he was guilty of negligence; (3) that she fell into the coal-hole (4) that she was, at the time of her fall, in the exercise of due care.

The duty of maintaining the coal-hole and its cover in a safe condition was upon the defendant. Inhabitants of Milford v. Holbrook, 9 Allen, 17. It was the defendant's duty to keep the coal-hole, as a part of his estate, in a safe condition. That it happened to be in a public street does not change the character of his liability. It is a person's duty to keep every part of his real estate in a reasonably safe and proper condition. Cunningham v Cambridge Sav. Bank, 138 Mass. 482; Kirby v Boylston Market Ass'n, 14 Gray, 249; Burt v. City of Boston, 122 Mass. 223; Readman v. Conway, 126 Mass. 374. See, also, Shipley v. Fifty Associates, 101 Mass. 251; Larue v. Farren Hotel Co., 116 Mass. 67; Looney v. McLean, 129 Mass. 33; Watkins v. Goodall, 138 Mass. 533; Learoyd v. Godfrey, Id. 321; Brown v. Weaver, 5 Atl.Rep. 34. The case of Woods v. Naumkeag Steam Cotton Co., 134 Mass. 357, does not apply, because the proximate cause of the injury in that case was an accumulation of snow and ice on steps, and there was no duty on the defendant to remove it. In the case of Bowe v. Hunking, 135 Mass. 380, the tenant hired the whole house. It is a duty not to dig or maintain pits in the highway. Wood, Nuis. 6.

There was evidence tending to show negligence on the part of the defendant. The maxim, res ipsa loquitur, should be applied to such a case. The mere happening of a casualty is not sufficient evidence of negligence to go to a jury; but the nature of the accident, and the presumptions it raises, may suffice. Whart.Neg. § 421. It is enough for the plaintiff to raise a fair presumption of negligence. Probability is sufficient to go to the jury. Shear. & R.Neg. § 13; Moak's Underh. Torts, 310. Negligence should be presumed from the mere fact that the cover turned. See Byrne v. Boadle, 2 Hurl. & C. 722; Scott v. London Dock Co., 3 Hurl. & C. 596; Kearney v. London & B.R.R., L.R. 5 Q.B. 411, and L.R. 6 Q.B. 759; Briggs v. Oliver, 4 Hurl. & C. 403; Ware v. Gay, 11 Pick. 106; Stokes v. Saltonstall, 13 Pet. 181; Rose v. Stephens, 13 Reporter, 421. It should have been left to the jury to say whether there was not a defect, and one which the defendant, by the use of ordinary care and diligence, would have known of. Wolf v. Kilpatrick, 101 N.Y. 146, 4 N.E. 188. See, also, Nelson v. Godfrey, 12 Ill. 20; Greany v. Long Island R.R., 101 N.Y. 419, 5 N.E. 425. That the plaintiff was, at the time of her fall, in the exercise of due care, plainly appears from the evidence. The evidence was conclusive upon that point. But, if it could have been questioned, then it was a question for the jury to pass upon. Watkins v. Goodall, 138 Mass. 533; Whitford v. Inhabitants of Southbridge, 119 Mass. 564; Dewire v. Bailey, 131 Mass. 169; Looney v. McLean, 129 Mass. 33; Lyman v. Hampshire, 140 Mass. 311, 3 N.E. 211; Fleck v. Union R. Co., 134 Mass. 480; Gilbert v. Boston, 139 Mass. 313. "A person walking along the streets need not expect pitfalls." Brown v. Weaver, supra. The evidence was competent as bearing on the question of reasonable care and diligence on the part of the defendant. Post v. Boston, 141 Mass. 189, 4 N.E. 815.

Wm. Gaston and C.F. Donnelly, for defendant.

The offered testimony of Mrs. Carver was immaterial. Collins v. Dorchester, 6 Cush. 396; Robinson v. Fitchburg & W.R. Co., 7 Gray 92; Maguire v. Middlesex R. Co., 115 Mass. 239. There was no evidence upon which the plaintiff could have maintained her action. It is not sufficient for the plaintiff to show that the injury may have been occasioned by the negligence of those she seeks to charge with it. Kendall v. Boston, 118 Mass. 234; Hutchinson v. Boston Gas-Light Co., 122 Mass. 219; Berrenberg v. Boston, 137 Mass. 231; Woodcock v. Worcester, 138 Mass. 268. This is clearly not one of the cases where negligence of the defendant can be inferred from the happening of the accident alone. Mahoney v. Libbey, 123 Mass. 20; Smith v. First Nat. Bank of Westfield, 99 Mass. 605; Hammack v. White, 11 C.B. (N.S.) 588; Higgs v. Maynard, 12 Jur. (N.S.) 705; Murray v. Metropolitan R. Co., 27 Law T. (N.S.) 762; Welfare v. Brighton R. Co., L.R. 4 Q.B. 693.

OPINION

HOLMES, J.

The ground on which the defendant seeks to sustain the ruling that the plaintiff could not maintain her action is that the plaintiff offered no evidence that the cover to the coal-hole into which she fell was insufficiently guarded, and that one of the plaintiff's witnesses, Perrow, testified that, a month before the accident, he saw a stone weight attached to the cover, which it is suggested may have been removed just before the accident by a stranger to the defendant. But this testimony of Perrow was on cross-examination, and was met by other testimony that the cover could not be seen from the place from which Perrow said he saw it. The jury might have disbelieved Perrow on this point, and might have believed his direct testimony that, at the time of accident, the cover had no weight upon it, and that, the evening before, it slipped off the hole when he stepped upon it. They might have inferred from these facts, connecting the earlier condition of the hole with them, if necessary, (Berrenberg v Boston, ...