Howard v. Cent. Amusement Co.

• Decision Date: 25 May 1916
• Citation: 112 N.E. 857,224 Mass. 344
• Parties: HOWARD v. CENTRAL AMUSEMENT CO. (two cases).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

224 Mass. 344

112 N.E. 857

HOWARD

v.CENTRAL AMUSEMENT CO. (two cases).

Supreme Judicial Court of Massachusetts, Essex.

May 25, 1916.

Exceptions from Superior Court, Essex County; James F. Quinn, Judge.

Actions by Fannie B. Howard and by W. Frank Howard, husband of first plaintiff, against the Central Amusement Company and the Central Amusement Operating Company. Verdict in favor of the Central Amusement Operating Company, and verdict for both plaintiffs against the Central Amusement Company, which excepts. Exceptions overruled.

The personal injuries were caused by the fall of a piece of stucco work from a building in Lynn owned by the first-named defendant and leased to the second-named defendant. The suit by the husband is to recover for consequential damages. There was a verdict in favor of the Central Amusement Operating Company, and a verdict for both plaintiffs, aggregating $4,000, against the Central Amusement Company.

The defendant asked the court to rule among other things: (1) That on the evidence the plaintiff could not recover; (3) that on the evidence defendant was not negligent; (4) that if the jury find that the piece of stucco actually fell as alleged, the cause of its falling, upon the evidence, is conjectural, and is as consistent with due care on the part of the defendant as with lack of care; (6) if the fall of the piece of stucco was caused by lack of proper securing of the concrete ornaments on the wall, and the defendant had no notice of this, but had intrusted the work to a competent contractor, the defendant was not liable for the stucco work falling; (9) the evidence introduced in the case does not sustain the allegations in the declaration.

Wadleigh & Shaw, of Lynn, for plaintiffs.

Jas. T. Connolly, Damon E. Hall, and M. J. Mulkern, all of Boston, for defendant.

DE COURCY, J.

The plaintiff Fannie B. Howard (hereinafter called the plaintiff), while walking on the sidewalk of Union street in Lynn, was struck by a piece of concrete or stucco which broke from one of the ornaments on the front of the defendant's building. The jury returned a verdict in favor of the tenant, the Central Amusement Operating Company, and against this defendant, the owner of the property.

1. The stucco ornament from which the piece broke and fell, was about 3 feet wide and 3 1/2 feet long, weighing 400 or 500 pounds. There was evidence for the jury that in its composition improper materials hnd been used, which would disintegrate and crumble when subjected to the influence of the weather and to the vibration caused by passing trains; that the ornament was so constructed that water could get between it and the bricks, and there form ice, tending to throw it off from the main building; and that it was not securely joined to the main structure by being built into the bricks, or otherwise attached or supported. It could be found that the directors of the defendant, who supervised the construction of the building, not only ought to have anticipated the possibility of danger in this part of the permanent structure, but that their employé, King, who had charge of the work, expressly warned them that the cement which they substituted for white cement mortar, would not stand, and that the stucco work was not being properly attached to the brick front. In short there was evidence for the jury that this ornamentation constituted a menace and danger to pedestrans on Union street at the time the defendant let the building to the other corporation (the officers of which apparently were the same as those of the defendant), and that it took no precaution to guard...