Magay v. Claflin-Sumner Coal Co.
| Decision Date | 21 October 1926 |
| Parties | MAGAY v. CLAFLIN-SUMNER COAL CO. SAME v. L. K. LIGGETT CO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Exceptions from Superior Court, Worcester County; J. D. McLaughlin, Judge.
Separate actions of tort by Rebecca L. Magay against the L. K. Liggett Company and against the Claflin-Sumner Coal Company. Cases tried together. Finding for plaintiff, and defendants except. Exceptions overruled.
J. C. McDonald, of Worcester, for plaintiff.
C. C. Milton and S. B. Milton, both of Worcester, for defendants.
These two actions for personal injuries were tried together. The injury was received by the plaintiff while walking on the easterly side of Main street near the corner of Front street, Worcester, in a southerly direction, on November 3, 1924, by reason of her falling into an opening in the sidewalk beneath which was a basement occupied by the L. K. Liggett Company. The Claflin-Sumner Coal Company (hereinafter called the coal company) was at the time using the opening for the purpose of delivering coal to the L. K. Liggett Company, which was a lessee of the entire building at Main and Front streets and occupied the entire front floor. Covering the opening or coal hole were trap doors of light casting, opening vertically in two parts. The opening was 53 5/8 inches long and 40 1/2 inches wide; the longer side being parallel to the street line. The side opening nearest the building was approximately 3 1/4 inches from the westerly wall of the building. The two parts of the door were each 26 3/4 inches in height when opened. There was no fastening to hold the doors when open. On the day of the accident an employee of the coal company had gone to the basement and raised the doors preparatory to delivering the coal. Other employees of the coal company were present, standing near the coal truck at the curb.
The plaintiff testified that on the afternoon in question she was going to her work, proceeding toward Front street, intending to cross Harrington crossing to go to the other side of Main street, looking ‘at the people going back and forth’; that her foot struck against something on the sidewalk and she tripped, falling through the opening into the basement. There was evidence that the plaintiff walked against the northerly door, the door thereby closing; that the day was clear and bright; ‘that it seemed quite crowded there because they were just coming out of school;’ that the corner of Main and Front streets is the busiest corner in Worcester.
The case was heard by a judge without a jury. He found for the plaintiff and denied the defendant's motion that the court find for the defendant. There was evidence of the plaintiff's care. She was walking along the sidewalk of a public highway where there were many people, and her attention was directed to the crossing she was about to use. She could assume that the opening would be suitably protected, and while she might have avoided the injury if she had seen the open door in front of her, her care was a question of fact, taking all the circumstances into account. Wakefield v. Boston Coal Co., 197 Mass. 527, 83 N. E. 1116.Gillis v. Cambridge Gaslight Co., 202 Mass. 222, 88 N. E. 779.
The negligence of the coal company was a question of fact. It was the duty of this defendant, while using the coal hole as a means of delivering coal to the L. K. Liggett Company, to use proper means for the protection of travelers on the sidewalk. This was a question of fact for the judge. He might have found that the opening could have been protected by a railing or otherwise, so that pedestrians would not be injured; that with proper precautions, the plaintiff would not have fallen into the hole. French v. Boston Coal Co., 195 Mass. 334, 81 N. E. 265,11 L. R. A. (N. S.) 993, 122 Am. St. Rep. 257; Wakefield v. Boston Coal Co., supra; Muse v. De Vito, 243 Mass. 384, 137 N. E. 730.
[3] The L. K. Liggett...
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