Moret v. George A. Fuller Co.

• Decision Date: 01 April 1907
• Citation: 80 N.E. 789,195 Mass. 118
• Parties: MORET v. GEORGE A. FULLER CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

195 Mass. 118

80 N.E. 789

MORET v. GEORGE A. FULLER CO.

Supreme Judicial Court of Massachusetts, Suffolk.

April 1, 1907

Plaintiff sought to recover damages for personal injuries alleged to have been received through defendant's negligence in permitting the end of a board to extend into Washington street, in Boston, from a fence adjoining a building in process of construction. Plaintiff was proceeding along the street, which was crowded, near the building, 'picking her way along,' as these was a 'mix-up' at that point. She was on the right-hand side of the street, on a board walk which was in the street outside the line of the sidewalk. There was a board sticking out of the fence against which she hit her arm, tearing her waist and injuring the outside of her arm about two inches below the shoulder. The sixth and seventh requests referred to in the opinion are as follows:

'Sixth. If the jury find that on June 5, 1905, Jones & Meehan had entire charge and control of the fence in front of the Siegel Building on Washington street, plaintiff cannot recover against the defendant George A. Fuller Company.

'Seventh. If the jury find that on June 5, 1905, the defendant George A. Fuller Company did not have charge and control of the fence in front of the Siegel Building and that the fence was maintained for the use and benefit of Jones & Meehan the plaintiff cannot recover against the Fuller Company.'

COUNSEL

William P. Meehan and Charles H. Donahue, for defendant.

OPINION

RUGG J.

1. There was ample evidence that the plaintiff was in the exercise of due care at the time of receiving her injuries. Her uncontradicted testimony showed that she 'was picking her way along, as there was a 'mix-up' at that point and the street was crowded. * * * There were people in front and behind her coming and going'; and as she was walking on a board walk outside the sidewalk she hit against a 'board sticking out of the fence.' This is the description of what an ordinarily prudent person would do under like circumstances. The street was not closed for travel and the board walk was an invitation to pedestrians with the implication that it was reasonably safe. While perhaps she may not have been justified in proceeding with the same assurance as upon a permanent sidewalk, she was at least not bound to be on the lookout for boards protruding into the way. Leonard v. Boston, 183 Mass. 68, 66 N.E. 596.

2. The permit issued on August 10, 1904, and extended to November 1 1905, by the street department of the city of Boston authorizing the defendant to obstruct for building purpose that portion of the street where the accident occurred and requiring it to maintain 'a safe and convenient way for the use of foot travellers * * * and a safe and convenient passage for public travel around. * * *' was competent evidence bearing upon the control of the defendant over the place of accident. The mere issuing of this permit, however, was no evidence of negligent maintenance of the fence by the defendant. The probative force of the instrument as to this plaintiff went no further than to indicate, unexplained, responsibility for the existence of the fence. Whether and by whom it was negligently maintained were facts which must have been proved by independent evidence bearing upon its condition at or about the time of the injury. It was therefore error to refuse to grant...