Moynihan v. Whidden

• Decision Date: 07 January 1887
• Citation: 9 N.E. 645,143 Mass. 287
• Parties: MOYNIHAN, Adm'r, etc. v. WHIDDEN and another.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

143 Mass. 287

9 N.E. 645

MOYNIHAN, Adm'r, etc. v. WHIDDEN and another.

Supreme Judicial Court of Massachusetts, Suffolk.

January 7, 1887

COUNSEL

Gaston & Whitney, for defendants.

The plaintiff failed to show, upon the evidence, that the defendants had violated any legal obligation which they owed the plaintiff's intestate. Dill. Mun. Corp. §§ 581-583. The city authorities made over to the defendants the exclusive control and use of the locus where the accident is said to have happened. White v. South Shore R. Co., 6 Cush. 412. Until the permit was revoked in fact, it continued in force, and the plaintiff was a trespasser. Howland v. Vincent, 10 Metc. 371. Neither was there any evidence tending to show that there was, on the part of the defendants, an implied invitation to the plaintiff to enter upon the premises. The plaintiff has not shown that he was in the exercise of due care, and that he in no way contributed by his own wrongful act to the accident. Todd v. Railroad Co., 3 Allen, 18.

S.B Allen and O.A. Galvin, for plaintiff.

Whether a child of eight years was competent to understand the nature and danger of such unguarded machinery, and whether his taking hold of the rope so hanging within his reach was negligent, should have been submitted to the jury. Coombs v. New Bedford Cordage Co., 102 Mass. 599; Lane v Atlantic Works, 111 Mass. 136; Dowd v Chicopee, 116 Mass. 93; Plumley v. Birge, 124 Mass. 57; Pennsylvania R. Co. v. Kelly, 31 Pa.St. 372; Birge v. Gardner, 19 Conn. 507; Railway Co. v. Gladmon, 15 Wall. 401; Mangam v. Brooklyn R. Co., 38 N.Y. 455. The question as to whether defendants were negligent in the construction of the machinery, and not inclosing it, etc., should have been submitted to the jury. Railway Co. v. Stout, 17 Wall. 659; Coombs v. New Bedford Cordage Co., ubi supra; Lane v. Atlantic Works, ubi supra; Pastene v. Adams, 49 Cal. 87; Lynch v. Nurdin, 1 Q.B.Div. 29. The machinery of defendants was dangerous. Railway Co. v. Stout, 17 Wall. 659; Lane v. Atlantic Works, 111 Mass. 136; Powell v. Deveney, 3 Cush. 300.

OPINION

W. ALLEN, J.

The declaration alleges that "said rope and gin were carelessly and negligently left unguarded by said defendants whereby the plaintiff's intestate, traveling along the highway called 'Pearl Street,' using due care, was hurt." The defendants had a right, under their building permit, to erect barriers, and exclude the public travel from that part of the street where the plaintiff's intestate was when injured. If they did not do this, but left the street open to public use, the plaintiff's intestate, in passing upon it, was "traveling," within the meaning of that word in the declaration. If the defendants, as is contended, had a right to maintain their rope and wheel over or in close proximity to the sidewalk, without excluding the public from it, they had no right to do it in such a manner as to endanger travelers upon the sidewalk. If they did not exclude the public, and the wheel, in the position and manner in which it was left by them, was dangerous to persons lawfully using the sidewalk, it was their duty to guard it; and, if they negligently left it unguarded, they would be responsible for the consequences of such negligence. The evidence was conflicting in regard to the existence of barriers, and to the position and condition of the wheel and...