Mitchell v. Lynn Fire & Police Notification Co.
| Decision Date | 17 September 1935 |
| Citation | 197 N.E. 456,292 Mass. 165 |
| Parties | MITCHELL v. LYNN FIRE & POLICE NOTIFICATION CO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Exceptions from Superior Court, Essex County; Brogna, Judge.
Action of tort by Vincent Mitchell, by next friend, against the Lynn Fire & Police Notification Company. Verdict for plaintiff for $754.18, and defendant brings exceptions.
Exceptions overruled.
J. E. Tierney, of Lynn, for plaintiff.
H. A Bowen, of Lynn, for defendant.
The plaintiff, a boy fifteen years old, while standing on the sidewalk in front of ‘ the Besse-Rolfe store’ in Lynn waiting for a car, was injured in consequence of the raising by one Hartigan, a servant of the defendant, of an awning which was attached to the front of the store and extended over the sidewalk.
There was evidence that the defendant was employed by the owner of the building to raise this awning each day; that when the awning was raised the end nearest the building of the iron bar which supported it would slide down in a groove or slot in a rod which was attached vertically to the wall of the building, so that the bar would fold up against the building; and that the bar in sliding down the rod struck the plaintiff's head.
A motion by the defendant for a directed verdict in its favor raises the following questions: (1) Whether as a matter of law the plaintiff was a trespasser upon land of the defendant's employer, so that the defendant, which came to the premises as a business visitor of the owner, owed the plaintiff no duty of ordinary care with respect to the raising of the awning (see Sarna v. American Bosch Magneto Corporation [Mass.] 195 N.E. 328), (2) whether there was any evidence of the defendant's negligence, and (3) whether as matter of law the plaintiff was guilty of contributory negligence.
As to the first question, there was evidence that ‘ the sidewalk’ upon which the plaintiff stood extended from the curbstone to the wall of the building. There was no evidence as to the exact location of the street boundary, but from repeated references to ‘ the sidewalk’ and to the movements of the plaintiff upon it from the wall of the building to the curbstone and in the absence of anything to control natural inferences, we think the jury were justified in finding that the entire space was open to travelers and that if the front of the building was not itself the property line, the owner had invited the public to use that part of the sidewalk which was on its land. Holmes v. Drew, 151 Mass. 578, 25 N.E. 22. See Conroy v. Allston Storage Warehouse, Inc. (Mass.) 197 N.E. 454.
More difficulty is presented by the positive testimony of the plaintiff himself on cross-examination that when he was struck he was leaning ‘ up against’ the vertical rod, but we need not decide whether if this evidence stood alone it would require a ruling that the plaintiff was a trespasser. There was other evidence. Hartigan, called by the plaintiff, testified that he warned the plaintiff that he was about to raise the awning; that the plaintiff, who had been leaning against the building near the rod, ‘ did not reply, but stepped forward toward the curbing * * * to a point about midway on the sidewalk,’ that Hartigan ‘ then turned to the awning attachment’ and proceeded to raise the awning. The plaintiff was entitled...
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