Jones v. Hayden
| Decision Date | 29 October 1941 |
| Citation | 310 Mass. 90,37 N.E.2d 243 |
| Parties | ELIZA JONES v. THEODORE F. HAYDEN. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
April 9, 1941.
Present: FIELD, C.
J., DONAHUE, QUA DOLAN, COX, & RONAN, JJ.
Nuisance. Way Public: obstruction, nuisance.
Proximate Cause. Evidence, Admitted without objection. Practice, Civil Auditor: findings; Requests, rulings and instructions.
No error appeared in the denial of a ruling, requested by the plaintiff at the trial of an action upon the report of an auditor and other evidence, in substance that, in order for force and effect to be given to a statement made by his attorney, which had been introduced in evidence before the auditor without objection and respecting which the auditor had made a finding as to a subsidiary fact not decisive of an issue, it must be shown to have been made with the plaintiff's knowledge, approval or direction or subsequently to have been adopted by him.
Evidence warranted a finding that goods, placed on a public sidewalk by the defendant while delivering them to an adjacent building from a truck parked beside the sidewalk, completely blocked travel on the sidewalk unnecessarily and for an unreasonable length of time and were a nuisance respecting a pedestrian thereby compelled to walk around the truck in the street, which was dangerous to travel by reason of ridges and furrows of snow and ice.
Evidence would have warranted a finding that a nuisance, maintained by a truckman in blocking a sidewalk and causing a pedestrian to walk in the street around his truck, was the proximate cause of injuries sustained by the pedestrian when he fell in the street due to its dangerous condition caused by ridges and furrows of snow and ice.
TORT. Writ in the Municipal Court of the City of Boston dated March 6, 1935.
On removal to the Superior Court, the case was tried before Kirk, J. In this court, the case was argued in April, 1941, before Field, C.J., Qua, Dolan, & Cox, JJ., and afterwards was submitted on briefs to all the Justices except Lummus, J.
F. I. Rose, for the plaintiff. R. N. Daley, for the defendant.
This is an action of tort to recover compensation for personal injuries sustained by the plaintiff, as a result of falling on Eustis Street, a public way in the Roxbury district of the city of Boston. The declaration is in two counts, the first alleging that the plaintiff's injuries were due to negligence of the defendant, the second alleging them to have been caused by a nuisance created by the defendant. The case was referred to an auditor whose findings were not to be final. He found for the defendant on both counts. Thereafter the case was tried to a jury upon the auditor's report and other evidence. Subject to the plaintiff's exception the judge directed the jury to return a verdict for the defendant on the count for nuisance. The jury found for the defendant on the count for negligence. The plaintiff duly excepted to the judge's failure to give a certain request for instructions to the jury as to that count.
The evidence in its aspect most favorable to the plaintiff would warrant the jury in finding the following facts: On February 11, 1935, at about 2 P.M., the plaintiff was walking on the sidewalk on Eustis Street. The defendant's truck was parked in front of a stable on the side of the street where the plaintiff was walking. The roadway was covered deeply with snow, the neglected accumulation of "recent" storms. It was a "mass of snow and ice ridges, with deep furrows and ruts between them, varying in depth and width but at least a foot deep," some being a foot or more wide. These ridges and furrows had been caused by vehicular traffic and "had hardened substantially into ice." The condition of the roadway was "dangerous to travel." The defendant testified that "he saw the plaintiff walking on the street and it was so rough he expected her to fall." The sidewalk in front of the stable had been neglected, "travellers walking on it had made travel possible . . . but not inviting."
The defendant's truck was being used to hoist bales of hay into the hay loft on the second floor of the stable. It had unloaded a large number of bales of hay onto the sidewalk, but at the time of the plaintiff's approach fifteen bales were still on the sidewalk "completely blocking travel." The truck, fourteen feet long, was parked parallel with and close to the sidewalk. In the process of hoisting the bales and letting the tongs down the truck was operated forward and back. The plaintiff "was obliged to go out into the street to pass around the hay and the truck," and while doing so slipped and fell on the ice, sustaining the injuries complained of. No part of the truck came in contact with her.
The defendant did not have any permit for raising the bales into the second story of the stable as required by c. 39, Section 38, of the Revised Ordinances of 1925 of the City of Boston. Chapter 27, Section 11, of those ordinances relating to the issuance of such permits provides, in part, that the person applying for the permit "shall maintain, during the whole time the work is in progress, good and sufficient barriers across the sidewalk . . . on each side of . . . [the] goods or merchandise . . . and shall not encumber the sidewalk for more than fifteen minutes at a time for such work." No barriers had been placed across the sidewalk, and from the time that the defendant and "his men" had dumped all of the bales onto the sidewalk until the accident "they were doing the hoisting, and this period was about one half hour or more, but not less than twenty minutes . . . ."
In the matter of the count for negligence the plaintiff's sole exception was to the failure of the judge to instruct the jury in accordance with her request that "Any statement alleged to have been made by the plaintiff's attorney in order to have any force and effect and in order for you to consider it, must be shown to be a statement made with the knowledge, approval, or direction of the plaintiff, or subsequently adopted by her, and in the absence of that, you should not take it into consideration in your deliberations and should completely disregard it, even though it may have been read to you in the auditor's report." This request was made as a result of findings made by the auditor with reference to a letter sent by the plaintiff's present counsel, dated February 14, 1935, which was introduced in evidence before the auditor without objection, and which, after setting out a claim of the plaintiff for negligent operation of a truck and the location of the accident, contained this concluding passage: "This woman allegedly being at a point in said street about in front of the front part of the truck as it was parked at the time." The auditor found that this statement contradicted the plaintiff's version of the accident, she having testified before him that when she stepped into the street and was about two feet in back of the truck, it started suddenly and would have struck her "except that she jumped back to avoid it, and in so doing, stumbled, slipped on the ice, and fell." In connection with the letter just referred to, while the auditor found that it was written by the attorney as a result of a telephone call made to him by the plaintiff's husband on February 13, 1935, and that the attorney did not confer personally with the plaintiff until February 19, 1935, the auditor, "contrary to the plaintiff's objection," gave this evidence force as an admission by the plaintiff and, in connection with other evidence in the case, found that the plaintiff did not meet with the accident "as presented by her before . . . [him]."
The plaintiff made no objection to the admission of this letter in evidence by the auditor, and it does not appear in the record that she made any motion to recommit the report, or that at the trial before the jury she moved to strike out the finding that the letter constituted an admission by her on the ground that the finding was based on an erroneous opinion of the law, or on any other ground. See G. L. (Ter. Ed.) c. 221, Section 56; Director General of Railroads v. Eastern...
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