Harrington v. Border City Mfg. Co.

• Decision Date: 25 November 1921
• Citation: 240 Mass. 170,132 N.E. 721
• Parties: HARRINGTON v. BORDER CITY MFG. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

240 Mass. 170

132 N.E. 721

HARRINGTON

v.BORDER CITY MFG. CO.

Supreme Judicial Court of Massachusetts, Bristol.

Nov. 25, 1921.

Exceptions from Superior Court, Bristol County; James H. Sisk, Judge.

Action by Mary Harrington against the Border City Manufacturing Company, for personal injuries. Directed verdict for defendant, and plaintiff brings exceptions. Exceptions overruled.

Plaintiff was employed in defendant's cotton mill, and while in the street returning to the mill during the noon hour was struck by a baseball from a ball game engaged in by other employees on a lot owned by defendant, a short distance from the street. She testified that she had seen them playing ball every day; that they could be seen from the mill office; that they were playing about 20 to 30 feet from the street, which was 50 feet wide; that while she was working there she had seen the ball come out in the street two or three times; that she had stopped, and was talking to some other girls; and that the batter who hit the ball was defendant's employee. She also sought to prove that another employee had previously been struck by the ball, and that the superintendent had been told thereof.David R. Radovsky and H. Wm. Radovsky, both of Fall River, for plaintiff.

Wood & Brayton, of Fall River, for defendant.

CROSBY, J.

This is an action of tort for personal injuries. The plaintiff testified that in the latter part of August, 1916, she was struck in the back by a baseball; that for a considerable period of time before and after the injury she had been employed by the defendant; that the accident occurred during the noon hour and while she was on Weaver street, an ‘ordinary street’ in Fall River, returning to the mill where she worked; that the defendant operated three cotton mills employing several thousand men; that the at the time she was struck some of these men were playing baseball on a lot of the defendant about twenty-five or thirty feet from the street and adjacent thereto; that she had seen them there every day, in summer, while she worked there. On cross-examination she testified that she was accustomed to take a walk during the noon hour and almost every day passed the lot where the boys were playing; that girls gathered there to watch the play; that while she was employed at the mill she had seen the ball ‘two or three times come out onto the street’; that when injured she was about three feet from the fence nearest to the side of the field where the game was played, and had been standing there about a minute to speak to some girls. She further testified that the ball game was being played in the meadow in the vacant lot at the foot of the bank and the lot stretched for a considerable distance; that it was a long, wide field without any buildings on it.

The due care of the plaintiff is not in issue. The only question is whether a finding of negligence on the part of the defendant would have been warranted.

It is plain upon the facts as disclosed by the record that for the defendant to allow its employees during the noon hour to engage in games of ball for pleasure and recreation on a large vacant field owned by it could not be found to constitute a nuisance.

If we assume without deciding that Weaver street, which is described as an ‘ordinary street,’ was a public highway, the defendant would be liable, if by acts negligently permitted or authorized by it on its land the plaintiff was injured while she was lawfully on the highway; and she would not lose her rights as a traveler if she stopped for a minute to speak to other persons. Judd v. Fargo, 107 Mass. 264;Smethurst v. Barton Square Independent Congregational Church, 148 Mass. 261, 266, 19 N. E. 387,2 L. R. A. 695, 12 Am. St. Rep. 550;Commonwealth v. Henry 229 Mass. 19, 22, 118 N. E. 224, L. R. A. 1918B, 827.

Cases which hold that the owner of land abutting on a highway may be liable...