Kendall v. City of Boston

• Decision Date: 03 September 1875
• Citation: 118 Mass. 234
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Elizabeth Kendall v. City of Boston. Same v. Charles E. Jenkins & another

118 Mass. 234

Elizabeth Kendall v. City of Boston.

Same v. Charles E. Jenkins & another

Supreme Court of Massachusetts

September 3, 1875

Suffolk. Two actions of tort for personal injuries sustained by the plaintiff at a concert given by the city to the Grand Duke Alexis on December 9, 1871.

The declaration in each case alleged that on or about the ninth day of December 1871, the defendants were in the lawful use and occupation and had the possession and control of a certain building on Winter Street in Boston, known as the Boston Music Hall; and for the purpose of ornamenting said building for an entertainment, had placed upon the walls thereof certain decorations, and among other things a certain statute or bust made of some heavy material; that on said day the plaintiff was present in said building upon the invitation and with the permission of the defendants, and while she was so rightfully therein, and was in the exercise of due care, said statute or bust fell upon her in consequence of the negligence and carelessness of the defendants, and she was thereby greatly injured. Answer in each case: a general denial. Trial in this court, before Endicott, J., who, after verdict, made a report of the cases to the full court, so much of which as relates to the point decided was as follows:

The plaintiff contended that if the first action could not be maintained, the defendants in the second action were liable personally, they being members of the committee of arrangements appointed by the city authorities to extend the hospitalities of the city to the Grand Duke, and under whose direction the concert was given. The bill for the rent of the hall and that of the person who decorated it were paid by the city.

The plaintiff, having received from one of the city assessors a ticket, which was sent to her by the committee of arrangements, attended the concert, and sat in a seat assigned to her on the side of the hall, immediately under a bust of Franklin, which was attached or placed on the outside of the balcony above, and formed part of the decorations which had been put up for the occasion. As the audience rose when Old Hundred was sung, being requested so to do in the programme, the bust fell from its place, struck the plaintiff on her shoulder, and inflicted the injuries for which she seeks to recover damages. No evidence was offered in regard to the manner in which the bust was secured, but the fact that it fell was claimed to be sufficient evidence that it was negligently secured in its place.

At the close of the plaintiff's evidence, the judge ruled, on the defendants' motion, that the plaintiff could not maintain either action upon the evidence reported. Verdicts in each case were taken for the defendants. If the ruling was correct, judgments were to...