Maher v. Steuer

• Decision Date: 02 March 1898
• Citation: 170 Mass. 454,49 N.E. 741
• Parties: MAHER v. STEUER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

170 Mass. 454

49 N.E. 741

MAHER v. STEUER.

Supreme Judicial Court of Massachusetts, Suffolk.

March 2, 1898

COUNSEL

C.A. Reed and M.W. Brick, for plaintiff.

Max Fischaber, for defendant.

OPINION

ALLEN, J.

1. There was some evidence of negligence on the part of the defendant, viz. that in front of his premises upon which he was erecting buildings, and within the limits of the public street, and close to the space open for public travel, heavy foundation stones were piled up so insecurely as to be liable to be shaken down by passing vehicles, and that he was present personally, and gave directions as to placing the stones there.

2. There was also some evidence of due care on the part of the plaintiff, viz. that she, a young girl, while on her way home, was waiting for a moment near the pile of stones, till a team should pass; that she did not meddle with the stones and that the top stone was shaken down by the passing team and fell upon her. Whether she was careless in standing in that place was for the jury.

3. Even if the passing team struck the pile of stones, and thus caused one of them to fall upon the plaintiff, it does not follow, as a matter of law, that the defendant is not liable and the request for an instruction to this effect was rightly refused. If the stones were so carelessly piled in such an exposed position in the street that, in the ordinary course of things, a passing team or vehicle was likely to come in collision with them, and throw them over, the defendant might be responsible for the consequences of a failure to guard against this contingency. McCauley v. Norcross, 155 Mass. 584, 30 N.E. 464.

4. If the defendant assumed control of the stones as they came from the cart, or directed the contractor where to put them, he might be held responsible for negligence in respect to them, although but for his interference the contractor alone would be responsible. If it was the contractor's duty under his contract to deliver and deposit the stones in a safe place and in a safe manner, this fact would not relieve the defendant if he in fact took control, though it would relieve him if he did not in fact take control. All this was fully explained to the jury, and the repetition at the end of the charge, though unnecessary, furnishes no ground of exception.

5. The defendant, after the conclusion of the charge, asked an instruction that he "had a right to use so much of the...