Falardeau v. Malden & Melrose Gas Light Co.

• Decision Date: 06 April 1931
• Parties: FALARDEAU v. MALDEN & MELROSE GAS LIGHT CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

275 Mass. 196

175 N.E. 471

FALARDEAU

v.MALDEN & MELROSE GAS LIGHT CO.

Supreme Judicial Court of Massachusetts, Middlesex.

April 6, 1931.

Report from Superior Court, Middlesex County; Frederic B. Greenhalge, Judge.

Action by George Falardeau, p. p. a., against the Malden & Melrose Gas Light Company. On report after verdict for defendant entered by trial judge in accordance with leave reserved.

Judgment for defendant.J. E. Hannigan and A. M. McDonough, both of Boston, for plaintiff.

L. C. Doyle, of Boston, for defendant.

SANDERSON, J.

This is an action of tort to recover for personal injuries to the plaintiff, a boy seven years of age, alleged to have been caused by the negligence of the defendant in the use of welding rods and other materials. The accident occurred in November, 1927, upon a vacant lot on a street corner, in the city of Malden, owned by the Malden Investment Company. The property was for sale and a ‘For Sale’ sign was on the lot at the time of the accident. The evidence tended to prove that at some previous time ‘No Trespassing’ signs had been placed upon the land, but that there had been no such sign upon it for a substantial period before the accident. The field was in a residential section of the city and there was evidence that for two years or more before the accident children in the neighborhood had made use of it as a playground, and that it had been used by people to walk across to a neighboring street and as a dumping ground. Testimony in behalf of the defendant that it had permission of the owner to occupy the lot was controverted and the jury found, in answer to a special question, that it was a trespasser thereon. Before the accident the defendant had been engaged in laying new pipes in the streets in the neighborhood and about a month before had put some of its equipment and materials on this lot.

On the day of the accident two of the defendant's employees began welding operations thereon and were engaged in welding together short lengths of pipe to lay in an adjoining street; in this operation they used metals rods three feet in length and three sixteenths of an inch in diameter, which in the process of welding were melted in the pipe by an acetylene torch. Near these short pipes was another pipe about thirty feet long upon which no one was working. The plaintiff introduced evidence that unused rods and parts of used rods were lying around and resting against the pipes and that the welders stuck some of them in the ground near their work for their convenience. Testimony introduced by the defendant tended to prove that the rods were kept in a receptacle provided for the purpose, that its employees did not and should not stick them in the ground. There was evidence that children were playing around the pipes and with the rods, and that the watchman sent two of them home; that the defendant's employees ordered children away who bothered them at their work and told them not to take the rods; that the welders knew children should be kept away and that the defendant did nothing to protect children except to try to keep them off the lot. Rules of the defendant were introduced to the effect that every precaution should be taken to prevent accidents and that it was the duty of every employee to be on the alert to safeguard in every way persons and property.

One of the plaintiff's companions testified that the plaintiff, while walking or running on the long pipe, holding one of these rods in his hand and pushing himself with one end of it on the ground, slipped and was injured. The witness also testified that he was not certain that the plaintiff held a rod when he fell. Other testimony tended to prove that he slipped from the pipe when walking across it. The jury could have found that when he fell a rod penetrated his eye, that it was either one he held or some other rod with which he came in contact when he fell, and that the part of the pipe from which he fell was slippery, although the evidence introduced by the defendant tended to prove that the covering upon the pipe was made of a compound of tar and was not slippery.

The mother of the plaintiff testified that her son went from his home to play and at the time of the accident was playing with another boy; that she knew tools and apparatus were on the lot but did not knew that welding or any dangerous work was being done there.

The jury found for the plaintiff and the judge thereafter, in accordance with leave reserved, entered a verdict for the defendant and reported the case upon the terms that if there was sufficient evidence, including any offered by the plaintiff and improperly excluded, to warrant the submission of the case to the jury judgment is to be entered for the plaintiff in a stated sum, otherwise judgment is to be entered for the defendant.

No evidence was introduced to prove that the plaintiff had any invitation from the owner to be upon the lot, or had any right to be there, except such as may have arisen from the fact that for two years or more children had been in the habit of playing there and that the land was used by people to walk across. As to the owner of the property the plaintiff's rights could not have been found to be those of an invitee and, if it were not for the fact that his injury was suffered while he was intermeddling without right with the defendant's property, he might have established the liability of the defendant, who was a trespasser as to the owner, if he could prove that his injury was caused by the defendant's negligence. Buckley v. Arthur J. Hickey Family Laundry...