Marengo v. Roy
| Citation | 63 N.E.2d 893,318 Mass. 719 |
| Parties | MARENGO v. ROY et al. |
| Decision Date | 29 November 1945 |
| Court | United States State Supreme Judicial Court of Massachusetts |
OPINION TEXT STARTS HERE
Exceptions from Superior Court, Hampden County; Leary, Judge.
Action by Alexander Marengo, administrator of the estate of his minor son, deceased, against Alfred E. Roy and others for injuries to and death of intestate as the results of jumping into a kettle of hot tar, left by defendants in the yard of a tenement house, of which plaintiff was a tenant, while defendants were putting a new tar roof thereon. Verdicts for defendants, and plaintiff brings exceptions.
Exceptions overruled.J. F. Hartnett and O. D. Rainault, both of Holyoke, for plaintiff.
C. R. Brooks, D. B. Wallace, and E. L. Donnellan, of Springfield, for defendants.
Before FIELD, C. J., and QUA, DOLAN, WILKINS, and SPALDING, JJ.
This action is for conscious suffering and death of the plaintiff's intestate, a boy six years and three months of age, which resulted from his being burned on May 27, 1941, in a tar kettle containing hot tar located in the back yard of a tenement house in which his father, the plaintiff, was a tenant at 52 West Street in Holyoke.
The jury found for the defendants on counts alleging wilful, wanton, and reckless conduct but returned verdicts for the plaintiff on counts alleging negligence. On leave reserved the judge entered verdicts for the defendants on the negligence counts as well. The only question presented is whether there was any evidence to warrant a finding that the injury and death were caused by the violation of any duty of care which the defendants owed to the deceased.
The premises were owned by one Perron. In the back yard was a garage, also owned by Perron, the brick wall of which was surmounted by a flat roof a little over six feet above the surface of the yard. The plaintiff himself testified that this garage was not included in the tenement rented to him, and that it was rented to others. The defendants were in the roffing business. Perron had engaged them to put a new tar roof upon the main building and had given them permission to place their tar kettle in the yard. They placed it about three feet from the garage wall. The tar kettle is described as ‘a sort of stove.’ It consisted of an outside shell of cylindrical form about three feet high, within which the fire was built, and an inner pot of smaller dimensions, which contained the tar. On the day of the injury the defendants' men finished with the hot tar and put the fire out at about 11 or 11:30 in the forenoon. The top of the tar kettle was covered by a flat piece of sheet metal on which was placed a slab of wood. The injury occurred between 3:30 and 4:30 in the afternoon, while all the defendants' men were on the main roof. There were still from ten to twelve inches of tar in the pot, and although according to all the evidence on the point the fire had been out for several hours, the remaining tar appears to have been hot enough to cause burns. Not all of the evidence just recited seems to have come from sources by which the plaintiff is bound, but none of it was contradicted, and there was nothing from which inferences more favorable to the plaintiff could be drawn.
The only evidence as to how the deceased got into the tar kettle came from a ten year old boy who was an eyewitness, and in the form of declarations which the plaintiff testified the deceased made before his death. The ten year old boy testified that the deceased got up on the garage roof; that an older boy promised the deceased a penny, if the deceased could jump on the cover of the tar kettle; and that the deceased jumped from the roof to the cover, but hit the cover on the side, and ‘it slid and he fell right in.’ However, the alleged declarations by the deceased were to the effect that he ‘thought it was a box’ and tried to jump over it, but went into it; and that he did not know there was tar in it. There was evidence that ‘after the accident’ the cover of the tar kettle was bent and ‘one side was pushed in.’ There seems to be no question but that the deceased got into the tar kettle as a result of jumping from the garage roof. The plaintiff himself in his brief states this as a fact.
The defendants contend that they are not liable for negligence because the deceased was injured as the result of trespassing upon their tar kettle. They cite McGuiness v. Butler, 159 Mass. 233, 34 N.E. 259,38 Am.St.Rep. 412;Gay v. Essex Electric Street Railway, 159 Mass. 238, 34 N.E. 186,21 L.R.A. 448, 38 Am.St.Rep. 415;Holbrook v. Aldrich, 168 Mass. 15, 46 N.E. 115,36 L.R.A. 493, 60 Am.St.Rep. 364;Falardeau v. Malden & Melrose Gas Light Co., 275 Mass....
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Dennehy v. Jordan Marsh Co.
...or any tenant that they had abandoned the crate and had left it upon the premises. Sample v. Melrose, 312 Mass. 170. Compare Marengo v. Roy, 318 Mass. 719 . A defendant may be found liable to one who has been while rightfully on the premises of another where the premises have been rendered ......
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Dennehy v. Jordan Marsh Co.
...they had abandoned the crate and had left it upon the premises. Sample v. Melrose, 312 Mass. 170, 43 N.E.2d 665. Compare Marengo v. Roy, 318 Mass. 719, 63 N.E.2d 893. A defendant may be found liable to one who has been injured while rightfully on the premises of another where the premises h......
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Noebel v. Housing Authority of City of New Haven
...to be reasonably foreseeable. See Palsgraf v. Long Island R. Co., 248 N.Y. 339, 345, 162 N.E. 99, 59 A.L.R. 1253; Marengo v. Roy, 318 Mass. 719, 722, 63 N.E.2d 893. The second count incorporates the allegations of negligence contained in the first count and alleges, in an additional paragra......
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