Learoyd v. Godfrey

• Citation: 138 Mass. 315
• Parties: Charles H. Learoyd, executor, v. Job M. Godfrey
• Decision Date: 09 January 1885
• Court: United States State Supreme Judicial Court of Massachusetts

138 Mass. 315

Charles H. Learoyd, executor, v. Job M. Godfrey

Supreme Judicial Court of Massachusetts

January 9, 1885

Argued October 28, 1884. [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material]

Bristol.

Tort, for personal injuries occasioned to Thomas Booth, the plaintiff's intestate, by stepping into a well on premises of which the defendant was the owner in fee, but which were let by him as hereinafter appears. Trial in the Superior Court, before Knowlton, J., who allowed a bill of exceptions in substance as follows:

The premises are situated on the westerly side of School Street, in Taunton, and there were four buildings thereon, occupied by different tenants as residences, two on the line of the street and two in the rear. Between the two houses on School Street was a space eleven feet and three inches wide at the street end, and continuing of that width for a space of thirty feet and four and three fourths inches, when between the L of the front southerly building and the front northerly building it became seventeen feet and seven and a quarter inches wide, and continued of that width until the open back yard was reached. This space between the houses was the only entrance from the street for persons having occasion to go to the rear buildings and to the northerly front building. The positions of the houses on the land are shown on a plan used at the trial, a copy of which is printed in the margin. *

The only obstructions in this space were two flights of steps attached to the northerly front building, and a well. One flight of steps was near the street, and the other about eight feet from the westerly end. The steps were about twenty-three inches high and extended into the space about two feet and ten inches. The centre of the well was about four and a half feet southerly from the southwesterly rear corner of the northerly front house. The stone work of the well was eight inches above the ground and on top of this was a curbing of joists and planks seven inches thick, making the total height above the ground fifteen inches. On the planking there was a board one inch thick which covered the well, except a space two feet in length and a foot and a half wide, which was open and uncovered, and had been open for about two years before the accident. The open space between the southeasterly corner of the planking and the northwesterly corner of the L of the southerly house was a little over eleven feet.

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The plaintiff put in evidence a lease of the whole premises from the defendant to Lewis E. Field, dated October 25, 1869, for the term of twenty-five years from November 1, 1869, with a privilege of a lease for seventy-four years longer. It was in the usual form, with a right of assignment, and a right in the lessor or his assigns to terminate it after thirty days' notice in writing of the lessee's failure to pay the rent and taxes as stipulated, and with the privilege to the lessee of removing the buildings then on the premises; but, at the termination of the lease, the lessee was to leave a building or buildings thereon of the value of $ 1000.

The plaintiff also put in evidence a lease from Field to Thomas O. Falvey, dated July 1, 1870, for the term of twenty years from date; a mortgage by Field of his interest in the premises to John D. G. Williams to secure the payment of $ 1000, dated August 29, 1874; an assignment by Falvey of all his interest in the premises to A. K. Williams and several other persons, dated June 1, 1873; a release by Field to said A. K. Williams and others, dated June 10, 1876, of all their liabilities to him under their lease; a quitclaim deed from Field to John D. G. Williams, containing an acknowledgment of the foreclosure of the mortgage, dated November 28, 1876; and a quitclaim deed from John D. G. Williams to the defendant, dated March 28, 1877, and also an assignment of the mortgage from him to the defendant. These instruments were duly recorded in the registry of deeds at or within a few days of their respective dates.

The plaintiff called the defendant as a witness, who testified as follows: "I knew the premises; I have let them since 1877. Mr. Falvey acted as my agent to collect the rents; then I got the rents. Then I had Calvin Ellis to collect the rents; I cannot say whether Ellis collected the rents. At the time of the accident I had half a dozen tenants there at least. All the buildings except the two front southerly ones were put on by Field, the lessee, or parties holding under his lease. The two buildings in the rear and the unfinished northerly building were put there by them. They were already occupied by tenants as residences when I got possession. The rear northwesterly tenement Mrs. King occupied, and I think paid $ 3 per month. After J. D. G. Williams gave up in 1877, I collected the rents. I cannot say whether Mrs. King was there at that time. There were one or two other tenements in this building occupied by tenants. Some of the tenants have been in the premises for a good many years. The space between the two front houses was the passageway to go to the houses in the rear; and, so far as I knew, the tenants used it. I used it myself in going upon the premises, and I gave no one of them any exclusive right there. In letting, there was nothing said about the well at all. There was no other well on the premises. I can't tell whether there was any curbing or pump there in 1877. I knew most of the assignees of the lease from Falvey to A. K. Williams and others. Nothing has occurred between us. I have talked with them about the lease, but could get no satisfaction. I have kept an account of the rents I have received. I don't remember how the well was in 1877. No fault has been found about the curbing. The tenants have asked me to put in a pump. A pump has been put in since this suit commenced. I have had Joseph F. Etter to do some carpentering. He never said anything to me about the well being dangerous. He did not say to me, 'Somebody will get drowned there,' nor I reply, 'Let them drown.' I have no recollection of any such remarks. The well is about twelve feet deep, and I helped my father to dig it about forty years ago. There was a good well curb around the well, of the usual height, about three feet, when I leased the premises to Field."

Lewis E. Field testified that he released A. K. Williams and others from all their obligations to him under their lease, for $ 600; and that since then said A. K. Williams and others had had nothing to do with the premises, to his knowledge.

The deposition of Thomas Booth, the plaintiff's intestate, was then read, the material portions of which are as follows: "I was a constable, and on the police force of Taunton, on November 19, 1881. At ten o'clock that night, by orders from the police station, I went to the premises on School Street said to be Job M. Godfrey's place. I had never been inside the premises before that I remembered; I may have been at the entrance. I did not know there was a well there, and I did not see one when going in or coming out until I stepped one leg in. I went there to stop a disturbance of the peace I was told was taking place there. I found Edward King there drunk. He threatened to knock his sister's head off, and was making considerable noise, so that we heard him before we got there. I arrested him. I took him by his left arm. He made no resistance. I came out, his left arm in my right, till I reached this obstacle as I call it. I did not know what it was. When I got to the place, the well, I went to step over, as I thought, when I got my right foot on the curbing it raised me up so to step further with my left, I stepped my left foot in the well. I dropped down till my left side struck the top of the well. It knocked the wind out of me, and I hollered as well as I could. One of the officers came and assisted me up out of the well. It was three or four minutes before I could go on. I then got King on my arm and he came along quite easy, and I went to the station with him. King walked pretty well for a man who was drunk"

Captain Hopkins and three police officers, Littlejohn, Doherty, and Thomas, testified to the following facts: Annie King daughter of Mrs. King, who had a tenement in the rear northwesterly building, came to the police station, and said that her brother was drunk in the house, and had beaten her and his mother, and was otherwise creating a disturbance, and her mother wanted him arrested. Captain Hopkins sent the plaintiff's intestate and officer Doherty together to go there and take other officers with them from their beat as they went on their way. The place was some three or four hundred yards from the station, and on another street. It was about ten o'clock in the evening, and a very dark and rainy night, with no moon. They took no lantern. There was no light from any windows on the premises or otherwise, and none on the street opposite thereto. Booth and Doherty found officers Thomas and Littlejohn on their way, and took them with them. They went through the passageway from the street into Mrs. King's tenement and found King,...