Dewire v. Bailey

• Citation: 131 Mass. 169
• Parties: John Dewire v. George T. Bailey
• Decision Date: 11 April 1881
• Court: United States State Supreme Judicial Court of Massachusetts

131 Mass. 169

John Dewire v. George T. Bailey

Supreme Court of Massachusetts

April 11, 1881

Suffolk. Tort for injuries received by the plaintiff while in the act of leaving the defendant's premises. Trial in the Superior Court, before Gardner, J., who allowed a bill of exceptions, in substance as follows:

The plaintiff had attended in the evening an entertainment (for which he had paid an entrance fee) held in the defendant's hall. The hall was let by the defendant, to the persons who gave the entertainment, for the evening. The plaintiff contended that, as he was stepping from the entry way of the building, in which the hall was, on to a plank sidewalk, which afforded the usual and regular means of access to and exit from the defendant's building, he slipped, by reason of a defect in the sidewalk, on that part thereof which belonged to the defendant, the defect being caused by an accumulation of ice and snow, and received the injuries complained of.

The plaintiff testified that, as he went into the building to attend the entertainment, he noticed that there was ice and snow on the plank sidewalk, but he did not slip going in that, at the close of the entertainment, he was among the last to leave; and that, after the accident happened, he noticed that the sidewalk in front of the door where he fell was in the same condition as when he went in; and that he stepped carefully in going out.

The plaintiff asked the judge to rule that, even if the plaintiff knew of the ice and snow, yet if, in leaving the hall, he used due care, under the circumstances, in passing out, it would not be contributory negligence. But the judge refused so to rule; and instructed the jury that the defendant, being the owner or occupant of the building, would be liable in damages to the plaintiff, coming to it at the defendant's invitation or inducement, express or implied, on any business to be transacted or permitted by the defendant therein, for any injury occasioned by the unsafe condition of the building, the access to it, or of the egress from it, which was known to the defendant, and not known to the plaintiff and which the defendant had negligently suffered to exist and had given the plaintiff no notice of. The judge further instructed the jury that, if the plaintiff knew of the unsafe and dangerous condition of the ice and snow upon the plank sidewalk at the entrance of the building, and took the risk of entering upon it and going into the building, knowing that he must pass over the dangerous place in coming out, and was injured in coming out, the plaintiff could not recover; but if the plaintiff was not aware of its unsafe and dangerous condition at the time he entered upon it, he might recover, if in the exercise of due care.

The jury returned a verdict for the defendant; and the plaintiff alleged exceptions.

Exceptions sustained.

E. B. Callender, for the plaintiff.

O. S. Knapp & C. D. Adams, for the defendant.

Field J. Colt, J., absent.

OPINION

Field, J.

The rulings of the justice presiding at the trial all rest upon the proposition that knowledge on the part of the plaintiff, at the time he entered upon the sidewalk, of the accumulation of snow and ice and of the unsafe condition of the sidewalk resulting therefrom, is in law conclusive evidence that he was not in the exercise of due care in attempting to pass over the sidewalk.

Looney v. McLean, 129 Mass. 33, was an action by a tenant of a part of a building against the landlord to recover for injuries received in consequence of the giving way of one of the steps of a staircase used in common by the tenants, for the safe condition of which the landlord was responsible, and it was held "that the fact, if proved, that the plaintiff had previous knowledge that the stairs were in a dangerous condition, would not be conclusive evidence that the plaintiff was not in the exercise of due care;" and Whittaker v. West Boylston, 97 Mass. 273, and Reed v. Northfield, 13 Pick. 94, are cited. Other recent cases to the same effect are George...