Mistler v. O'Grady

• Decision Date: 05 January 1882
• Citation: 132 Mass. 139
• Parties: George Mistler v. Thomas O'Grady
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

132 Mass. 139

George Mistler v. Thomas O'Grady

Supreme Court of Massachusetts

January 5, 1882

Argued March 4, 1881

Suffolk. Tort for personal injuries occasioned to the plaintiff, by falling into an excavation on the defendant's land. Answer, a general denial. Trial in the Superior Court, before Allen J., who allowed a bill of exceptions, in substance as follows:

It was admitted that the defendant was the owner of a lot of land on Conant Street, in Boston, upon which there are two dwelling-house one fronting and nearly on the line of the street, the entrance thereto being from the street, and the other at the rear of the lot, fronting upon the yard and passageway hereinafter mentioned, and distant about forty feet from the front house.

On one side of the lot was a passageway nine feet in width, running from the street in a straight line to the rear house, the entrance to which house was at the end of the passageway; and also abutting on the passageway was the front house, and an open, unfenced yard, about forty feet in depth, used in common between the two houses.

It was in evidence, on the part of the plaintiff, that the rear house was occupied by one Lutz, a shoemaker, who had a sign upon the side of the front house at the corner of the street and passageway, about two feet long and a foot and a half wide, and having upon it the words "J. Lutz, Boot and Shoemaker in the rear;" which sign had been there for about a year, having been placed there by the consent of one Etter, then and since the sole occupant of the front house who testified that the sign was so placed without the knowledge or consent of the defendant. It appeared from the evidence of the plaintiff that he, having never been upon the premises before, and knowing nothing of their arrangement went, on the evening of February 16, 1880, between seven and eight o'clock, to have his boots repaired by Lutz, as he had arranged to do a few days previously; that, from Lutz's sign, he understood his place to be in the rear part of the front house, and after entering upon the passageway from the street, which was unlighted, (although the plaintiff testified that there was sufficient light for him to read the sign,) and proceeding along the same as far as the rear corner of the front house, he turned from the passageway and entered the yard, going towards what seemed to be the back door of the front house, intending to enter this which was...