O'Neil v. Nat'l Oil Co.

• Citation: 231 Mass. 20,120 N.E. 107
• Parties: O'NEIL v. NATIONAL OIL CO.
• Decision Date: 17 July 1918
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

231 Mass. 20

120 N.E. 107

O'NEIL

v.NATIONAL OIL CO.

Supreme Judicial Court of Massachusetts, Suffolk.

July 17, 1918.

Exceptions from Superior Court, Suffolk County; James H. Sisk, Judge.

Action of tort for personal injuries by Nellie F. O'Neil against the National Oil Company. Verdict for plaintiff, and defendant excepts. Exceptions sustained in part. Judgment for plaintiff ordered in case of remittitur, otherwise exceptions sustained.

John F. Ryan, of Boston, for plaintiff.

John J. Cummings, of Botson, for defendant.

CARROLL, J.

The plaintiff was injured by stepping into a hole containing a gasoline tank, near a private driveway on the premises of Frederick S. Converse, by whom she was employed as a housemaid. One of her duties was to pick flowers for the table from the garden. The defendant delivered gasoline to Converse from a truck driven by one Stevenson in its employ; the gasoline was poured into a tank buried in a grass plot near the edge of a circular driveway. It was thought there was a leak in the tank and Stevenson hired a man to take it up. A round hole about four or five feet in diameter and four or five feet deep was dug, and left open and unprotected for three days; when in this condition between eight and nine o'clock on a foggy night while the plaintiff in company with two other housemaids employed by Converse, was ‘getting an airing,’ she fell into the hole and was injured. She testified that she did not leave the driveway, that the hole extended into it, and that she was injured while in the driveway. There was other evidence indicating that she fell on the lawn while on her way to get a pear from one of the trees. Stevenson, the driver of the truck, whose business it was to sell for the defendant gasoline, oils and tanks, testified, that he informed Quinn, the defendant's president, that he was going to ‘take up and, if possible, repair Mr. Converse's tank,’ and Quinn told him to ‘go ahead.’ Stevenson paid for the excavating and reported to Quinn that Converse was satisfied with the tank; a bill for the amount paid by Stevenson was sent to Converse by Quinn. The plaintiff entered into a covenant not to sue Converse and received from him $1500. The jury found for the plaintiff in the sum of $5000.

The jury could have found that when injured the plaintiff was not upon the lawn, but was on the driveway. She so testified, and there was evidence that while the tank was from six inches to a foot from the driveway before the excavating was begun, the hole made by the defendant's direction was four or five feet deep and four or five feet in diameter. There was, therefore, some evidence that the unguarded hole extended into the driveway and that the plaintiff while walking thereon was injured.

The defendant in doing the excavating was an independent contractor, whose duty it was to use reasonable care to guard the work; and in a proper way to protect the employés of Converse, lawfully using the driveway, from the danger of falling into the hole. If the hole was in the driveway designed and used for travel, the defendant was bound to anticipate that it was source of danger to persons walking thereon, and to provide against what was likely to happen. Hill v. Winsor, 118 Mass. 251;Boutlier v. Malden, 226 Mass. 479, 116 N. E. 251.

The defendant relies on Carey v. Baxter, 201 Mass. 522, 87 N. E. 901, where the plaintiff was injured by falling from the side door of her tenement because of the removal of three wooden steps by a contractor who was excavating for a walk to be laid along the sidewalk in front of the house, and from the street to the front door and to the side door. The case is plainly distinguishable from the case at bar. The plaintiff had been told by the landlord what was to be done; she knew that the work involved the removal of the steps and she could see from her tenement that the work was going on. The defendant had no reason to suppose that the plaintiff was ignorant of the condition of the walk and the removal of the steps, and he had no reason to anticipate harm to the plaintiff. It was not probable that she would attempt to use the steps when she could see to what extent the work was done and the defendant was not bound to foresee the improbable.

In the case at bar the plaintiff testified she had often, before this time, taken walks, passing where the tank was, though she did not remember seeing it. In using the driveway for her own convenience she was rightfully on the premises, and stood toward the defendant in the right of her employer. While the defendant had the right to dig the hole on the employer's premises, it was liable to the plaintiff for its negligence, she being lawfully where she was. Boutlier v. Malden, supra; Massaletti v. Fitzroy, 228 Mass. 487, 492, 493, 118 N. E. 168, Ann. Cas. 1918B, 1088, and cases cited.

It does not clearly appear how long after the opening was made the injury happened; but the jury must have found that it occurred before the work undertaken by Stevenson was completed, and accepted by Converse. Stevenson testified that he asked the chauffeur or gardener ‘to look out for it, and put some boards around it.’ This the chauffeur denied. But even if it were found to be true, the defendant was not relieved of its responsibility as an independent contractor, by delegating its business to an employé of Converse who had no authority to relieve the defendant of the duty it had assumed. Nor was the defendant relieved from liability to the plaintiff merely because Stevenson said to Converse that he thought it ‘a good idea to fill the tank and leave it open so in case it should leak next day, it would not have to be dug up again.’ The work had not been accepted by Converse at this time, and there is nothing to show that he was informed or had any knowledge that the opening was left unguarded and unprotected.

There was evidence that the plaintiff and the other maids picked fruit in the daytime and no objections had been made. Even if she were on the lawn and not on the driveway, and at the time looking for a pear, the jury could infer that in passing over the lawn, although not invited she was not there unlawfully so far as the defendant was concerned, and could recover for its negligence. Massaletti v. Fitzroy, supra.

There was evidence that Stevenson was authorized to do the work; before undertaking it he reported to the defendant's president and was authorized to go on with it; moreover, he was reimbursed for the amount expended by him, and Converse paid the defendant for the work it had done. This was evidence of a ratification, and by adopting the act of Stevenson, the defendant became responsible for his conduct in performing the work. Dempsey v. Chambers, 154 Mass. 330, 28 N. E. 279,13 L. R. A. 219, 26 Am. St. Rep. 249;Nims v. Mount Hermon Boys' School, 160 Mass. 177, 35 N. E. 776,22 L. R. A. 364, ...