Grella v. Lewis Wharf Co.
| Decision Date | 26 February 1912 |
| Parties | GRELLA v. LEWIS WHARF CO. (three cases). |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
GRELLA
v.
LEWIS WHARF CO. (three cases).
Supreme Judicial Court of Massachusetts, Suffolk.
Feb. 26, 1912.
Exceptions from Superior Court, Suffolk County; Charles F. Jenney, Judge.
Actions by Marciano Grella, as administrator, and by Marciano Grella individually, against the Lewis Wharf Company. Judgment for plaintiff, and defendant excepts. Exceptions overruled.
[211 Mass. 56]J. L. Hall and E. S. Kochersperger, for plaintiff.
J. & J. A. Lowell, for defendant.
DE COURCY, J.
The deceased, a child 14 months old, fell through an opening caused by broken banisters in a tenement house of the defendant, and struck on the floor below. These actions are brought, one for her death, one for her conscious suffering, and the third for the medical and funeral expenses.
[1] 1. The defendant's first request, that upon all the evidence the plaintiff cannot recover, was rightly refused. The defendant was the landlord of the plaintiff Marciano Grella and retained control of the common hallway where the accident happened. This opening in the balustrade was made after the tenancy began, [211 Mass. 57]had remained unguarded for two or three months before the accident, had been called to the attention of the defendant's agent and could have been repaired at a trifling expense. That this constituted sufficient evidence of negligence is not questioned by the defendant. Faxon v. Butler, 206 Mass. 500, 92 N. E. 707,138 Am. St. Rep. 405.
[2][3] But it is urged that the plaintiff has not sustained the burden of showing due care. The deceased was a child of such tender years that she was incapable of exercising care, and this issue must be determined by the conduct of those in charge of her. The mother testified that she intrusted the child to the custody of Angelina Cardarelli, the 15 year old daughter of a neighboring tenant, who had taken care of the little one on other occasions; and the case apparently was tried on the assumption that Angelina's due care must be shown. Norris v. Anthony, 193 Mass. 225, 79 N. E. 258.
[4] The accident happened on a hot summer evening. Two other children, aged 7 and 6 years, were playing with the baby in the corridor when Angelina took it up in her arms and walked with it. Later, being obliged to do her housework, she put the little one down on the floor at a place about opposite to the middle of the balustrade and apparently some feet distant from the opening mentioned. When she had taken three steps from where she left the child...
To continue reading
Request your trial