Marengo v. Roy
| Decision Date | 29 November 1945 |
| Citation | 63 N.E.2d 893,318 Mass. 719 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
| Parties | ALEXANDER MARENGO, administrator, v. ALFRED E. ROY& others. |
September 20, 1945.
Present: FIELD, C.
J., QUA, DOLAN WILKINS, & SPALDING, JJ.
Trespass. Negligence, Trepasser, Tar kettle, Contractor.
If a boy fell into a kettle of tar while attempting to jump over it from an adjacent roof, he would not be a trespasser upon the kettle and its owner would not be relieved on that ground of the duty to exercise due care toward him.
Evidence of the circumstances in which a boy, in jumping from a garage roof in a yard, fell into a covered kettle of hot tar nearby which its owner, a roofing contractor engaged in work on the premises, had left there with its fire extinguished some hours previously, would not have warranted a finding that the contractor should have anticipated such an occurrence or that he was negligent toward the boy.
TORT. Writ in the Superior Court dated January 8, 1942. Following trial before Leary, J., the plaintiff alleged exceptions.
In this court, the case was submitted on briefs.
J. F. Hartnett & O.
D. Rainault, for the plaintiff.
C. R. Brooks, D.
B. Wallace, & E.
L. Donnellan, for the defendants.
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 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 roofing 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 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...
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