Grella v. Lewis Wharf Co.
| Decision Date | 26 February 1912 |
| Citation | 211 Mass. 54,97 N.E. 745 |
| Parties | GRELLA v. LEWIS WHARF CO. (three cases). |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
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. 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 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.
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.
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 she heard it fall and turned back to see what was the trouble. Although the question of Angelina's due care is somewhat close on this evidence, under all the circumstances it was rightly submitted to the jury.
The same result is reached if the mother was the custodian at the time of the accident, as might be found upon Angelina's testimony. When she stepped from the corridor into her own apartment she saw her child in Angelina's arms, and within two or three minutes she heard the noise of the fall. We must take into consideration the fact that this woman was compelled to do all the family housework and attend to her two children, the younger of whom was less than two months old. She might well assume that Angelina, who was accustomed to the care of children and whose little brother was in the corridor, would not leave the baby on the floor but would call out for or return it to its mother. The jury might well find that the oversight this mother gave to her child was all that reasonably could be required of her under the circumstances disclosed. Sullivan v. Boston Elevated Railway, 192 Mass. 37, 78 N.E. 382, and cases cited.
2. The remaining exceptions apply only to the action under the death statute (St. 1907, c. 375). The second request raises the question whether the death of the child was caused by this corporation 'by * * * its negligence, or by the negligence of * * * its agents or servants while engaged in * * * its business.' The contention of the defendant is that its business was that of wharfinger, and not that of owning and renting tenement houses; and that the statute does not apply to it. This contention is sufficiently answered by the defendant's act of incorporation (chapter 115, St. 1834), which in terms empowered it, within limits which include the place of the accident, to 'erect buildings, lay out streets and passageways, and improve and manage said property, as to them shall seem expedient.' It may well be that its main business was in connection with its piers and the warehouses and stores thereon. But the maintenance of the tenement house at 259 North street and the receipt of its rentals was at least incidental to the business of this corporation which owned a number of tenement houses in the vicinity of the piers and had about 60 tenants. Daley v. Boston & Albany R. Co., 147 Mass. 101, 16 N.E. 690.
3. The court was right in refusing to give the third request that the mother's due care in the death case must be proved beyond a reasonable doubt. The history of our statutes authorizing recovery for death caused by negligence was thoroughly reviewed in the recent cases of Hudson v. Lynn & Boston Railroad, 185 Mass. 510, 71 N.E. 66, and Brooks v. Fitchburg & Leominster Street Ry., 200 Mass. 8, 86 N.E. 289, but the question now raised was not discussed. The only remedy provided in death cases was by indictment until St. 1881, c. 199, first introduced a civil...
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