Galligan v. Metacomet Mfg. Co.
| Citation | 143 Mass. 527,10 N.E. 171 |
| Parties | GALLIGAN, per pro. amie v. METACOMET MANUF'G CO. |
| Decision Date | 23 February 1887 |
| Court | United States State Supreme Judicial Court of Massachusetts |
Morton & Jennings, for defendant.
The plaintiff's case depends upon her proving that the defendant was the owner of the place where she was injured but the evidence does not disclose any ownership of the same by the defendant. The plaintiff must show that the gate was left open and kept open by the carelessness or negligence of defendant, and that is not shown by the evidence. Even if it did appear that the defendant did own the vacant lot where the plaintiff was injured, and had left the gate open, the defendant is not liable. The defendant did not invite plaintiff upon the vacant lot. The plaintiff was a trespasser. The defendant owed no duty, and was under no obligation, to the plaintiff. It was not bound to put up or maintain a gate or fence; and if it did put up a gate or fence, it was under no obligation to the plaintiff to keep the gate shut or the fence in repair. Southcote v. Stanley, 1 Hurl. & N. 246; Gautret v. Egerton, L.R. 2 C.P. 371; Bolch v. Smith, 7 Hurl. & N. 736; Hardcastle v. South Yorkshire R. Co., 4 Hurl. & N. 67; Hounsell v. Smyth, 7 C.B. (N.S.) 731, 97 E.C.L. 729; Venderbeck v. Hendry, 34 N.J.Law, 467; Gillespie v. McGowan, 100 Pa.St. 144; Morrissey v. Eastern R. Co., 126 Mass. 377; Severy v. Nickerson, 120 Mass. 306; Sweeney v Old Colony R. Co., 10 Allen, 372, 373; McAlpin v Powell, 70 N.Y. 126; Nicholson v. Erie Ry. Co., 41 N.Y. 525; Howland v. Vincent, 10 Metc. 371.
E.L. Barney, for plaintiff.
The plaintiff claims that said place was dangerous; that the defendant owned and controlled the lot of land, and had thrown it open to the public, and so expressly and impliedly invited, allowed, and suffered it for five years past, during every day in the week, to pass and repass along and upon said lot, and for children to play thereon. It was negligence in the defendant to permit that gate to be open, and allow men, women, and children to enter, pass along, and over, and play upon, a lot where so dangerous a place existed. No person has a right to open or use his premises so as to endanger the life, limb, and health of his fellow-beings. If one has a pit, precipice, or dangerous spot upon his land, it is culpable and actionable negligence to open it, so as to invite another to enter, or mislead one to enter, or to induce or invite one to enter thereon; and one so invited, who is injured when upon said lot, using due care, can maintain an action therefor. The fact that he is a trespasser does not preclude a recovery. Birge v. Gardner, 19 Conn. 507; Johnson v. Patterson, 14 Conn. 1; Daley v. Norwich R. Co., 26 Conn. 591; Bush v. Brainard, 1 Cow. 78; Koons v. St. Louis, 65 Mo. 592; Railroad Co. v. Stout, 17 Wall. 657; Norris v. Litchfield, 35 N.H. 271; Sweeney v. Old Colony R. Co., 10 Allen, 368; Spurr v. Shelburne, 131 Mass. 429; Mellen v. Morrill, 126 Mass. 546; Mistler v. O'Grady, 132 Mass. 139; Marble v. Ross, 124 Mass. 44; Learoyd v. Godfrey, 138 Mass. 315; Bird v. Holbrook, 4 Bing. 629; Loomis v. Terry, 17 Wend. 496; Meibus v. Dodge, 38 Wis. 300; Hooker v. Miller, 37 Iowa, 613; Kansas R. Co. v. Fitzsimmons, 22 Kan. 686. See Lane v. Atlantic Works, 111 Mass. 136; Marble v. Ross, 124 Mass. 44; Eaton v. Fitchburg R. Co., 129 Mass. 364. The plaintiff was a minor, and was using due care, and used a child's instincts, judgment, and caution; at least, it was a question of fact for the jury to decide. Mattey v. Whittier Mach. Co., 140 Mass. 337, 4 N.E. 575; McDonough v. Metropolitan R. Co., 137 Mass. 210; Gibbons v. Williams, 135 Mass. 333; McGeary v. Eastern R. Co., Id. 363; O'Connor v. Boston & L.R. Co., Id. 352; Murley v. Roche, 130 Mass. 330; Lynch v. Smith, 104 Mass. 52. The mother was using due care. There was evidence to go to the jury. Gibbons v. Williams, 135 Mass. 333. If there was any evidence of defendant's negligence, it was a question for the jury. There was evidence of the ownership and control of the lot to be submitted to the jury. If there was any evidence for the jury, the case should have been submitted to the jury. It is not a question of law if the evidence was sufficient.
OPINION
The plaintiff seeks to recover damages from the defendant corporation for an injury sustained by her from falling down a precipitous place in a vacant lot where she was playing the lot being in the rear of the premises where she lived, and separated therefrom by a picket fence, with a gate. But we are unable to find anything in the evidence reported which shows that the defendant owed, or in anyway failed in any duty to the plaintiff in respect to the condition of the lot. The only evidence tending to connect the defendant therewith was that the fence and gate were built by the defendant's workmen, about five years ago, and that the workmen had a key to the gate. There was no evidence to show that the defendant owned or occupied or had the care of the lot, or even that it had any right to place a fence along the brow of the precipice; or that, at the time of the accident, it used the road which leads through the gate, or left it open on the day of the...
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