Mcguiness v. Butler
| Decision Date | 22 May 1893 |
| Citation | 159 Mass. 233,34 N.E. 259 |
| Parties | McGUINESS v. BUTLER. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
The defendant was a marble cutter, and occupied, in his business, the street floor of a building on Beverly street. In the front of the building there were supporting columns five or six feet apart, and six or seven inches thick, extending from the ground up to the second story. The front side of those columns was just up to the street line. The front wall of the first story of the building ran along the rear of these columns from four to six inches from the street line, forming recesses between the columns about the depth of the columns, which recesses were outside of the highway, and were a part of the premises occupied by the defendant. An ordinance of the city provided: "No person shall place or permit to remain in a street any coal firewood, or other merchandise, for more than ten minutes." The foregoing facts were not in dispute. There was evidence tending to show that sometime prior to Sunday, November 24, 1889, there had been placed by defendant's servants, with his knowledge, against the front part of his building, two marble slabs,--one against the other; the bottom of one of the slabs resting outside of the line of the private property about four inches, and within the limits of Beverly street, a public highway in said Boston, and that part of it was used as a sidewalk, the tops of the slabs resting against the building in one of said recesses, and wholly within private property. That the slabs were about 4 feet high, 5 feet long, and, on the average each, 11/2 to 2 inches in thickness. That they were resting in the same place all day Sunday up to 4 P.M., when the accident happened. That Beverly street was mainly occupied by mechanical business establishments, which were all closed up on Sunday. That plaintiff, being then a boy of 8 years and 10 months of age, left his home on South Margin street, west of Beverly street, in company with a boy named Carroll, of the age of 9 years, to go to Sunday school, east of Beverly street, crossing Beverly street. That they left Sunday school, came back towards Beverly street, playing at childish games, such as "tag," "leads," etc., well known games of children. That for a few minutes prior to the accident they had been playing the game of "leads," which is played as follows: The leader (who in this case was the Carroll boy) touched the plaintiff, and then ran touching such other objects, and performing such feats, as he chose; and the plaintiff was to run after him, duplicating all his doings, and try to overtake and catch him. That in playing this game they had run across Beverly street several times. That Carroll finally ran across said street to the slabs, and began kicking and pulling at the outside marble slab. That the plaintiff, in playing the game, followed the Carroll boy to the opposite side of the street, and stopped there for a moment. That the plaintiff then followed the Carroll boy across the street to the marble slabs, and stood in front of them, and close to Carroll, while the latter was kicking and pulling them; and while plaintiff was there on the sidewalk he met with his injury, under circumstances of the character of which there was a conflict of testimony and inferences; the plaintiff's direct testimony tending to show that the Carroll boy, in a playful disposition, pulled the outer slab over from the top, to balance it, and, losing the balance, threw it, unintentionally, upon the leg of the plaintiff, who was a bare spectator upon the sidewalk looking on with childish curiosity, and encouraging the boy Carroll by no act or word, and not being in any wise a joint participant, while, on cross-examination of the plaintiff and the boy Carroll, their testimony, in portions, tended to show, on the contrary, that the two boys were playing the game of leads, in which the leader is to do something, and the follower is to imitate him; that the boy Carroll ran across the street, and proceeded, in carrying out the joint game, to pull at the marble; and that either the Carroll boy had done the thing, and the plaintiff was imitating him, and pulled the marble upon himself, or that the Carroll boy was pulling at the marble as a part of the joint game, and that the plaintiff was standing upon the sidewalk, prepared to imitate the boy Carroll when he had done his part, and the slab fell, and injured the plaintiff. The plaintiff asked the court to give the following instructions to the jury "The fact that the plaintiff himself may have interfered with the slabs, and did thereby, partially or wholly, bring the injury upon himself, does not help the defendant, if the plaintiff's act was what the defendant's conduct naturally attracted and invited, and such interference, and, the boy's conduct, was what might reasonably be expected of a boy of his tender years." The court declined to give...
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