Noonan v. O'hearn

• Decision Date: 28 February 1914
• Citation: 216 Mass. 583,104 N.E. 376
• Parties: NOONAN v. O'HEARN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

216 Mass. 583

104 N.E. 376

NOONAN v. O'HEARN.

Supreme Judicial Court of Massachusetts, Suffolk.

February 28, 1914

COUNSEL

John E. Crowley, of Boston, for plaintiff.

Michael L. Fahey and Chester A. Wardwell, both of Boston, for defendant.

OPINION

DE COURCY, J.

The plaintiff's intestate, Henry R. Noonan, a child 22 months old, was fatally injured on Saturday, June 24, 1911, by falling from the roof of a four-story tenement house that was owned by and in the control of the defendant.Covering this roof to within 20 inches of the edge was a platform constructed of boards laid upon 3-inch joists; and this flooring was surrounded by a three-board fence, attached to upright posts, the boards being each about 5 inches wide and placed 10 or 12 inches apart.The tenants had access to this structure, commonly called a shed, by means of the common stairways and hallways extending from the street floor.The plaintiff's family, of which the child Henry R. was a member, occupied the tenement on the fourth or top floor.

While the child was walking on the roof platform, accompanied by his seven year old sister, according to her testimony his foot went into a hole in the flooring, he fell over the lower rail of the fence at a place where the middle rail was missing, and rolled off the roof.As the child was too young to be capable of exercising care, the due care involved in this case is that of the mother.It could be found that she put the child to bed about half past 1 o'clock; that about 3 o'clock she saw that he was sleeping, and then she continued with her housework; that later, while she was lying asleep on the same bed, her seven year old daughter took the child up on the roof; and that the accident happened at about half past 4 o'clock.Whether the mother gave to her child Henry all the oversight that reasonably could be required of her under the circumstances disclosed by the evidence, and so was in the exercise of due care, was a question for the jury.Sullivan v. Boston Elevated Railway192 Mass. 37, 78 N.E. 382;Quinn v Boston Elevated Railway,214 Mass. 306, 101 N.E. 151.

If the child was a trespasser or a mere licensee on the roof shed the defendant owed him no duty to keep the premises in safe condition, and would not be liable on the evidence disclosed.Dalin v. Worcester Consolidated Street Railway,188 Mass. 344, 74 N.E. 597;Hillman v. Boston Elevated Railway,207 Mass. 478, 93 N.E. 653, 32 L. R. A. (N. S.) 198.The plaintiff contends, however, that there was evidence in the case from which the jury could find that the defendant had invited the tenants and their families to use this shed as the child Henry was using it at the time of the accident.It is conceded that the so-called shed was provided for the use of the tenants.Hooks for clotheslines were attached to the posts, and the place was used also for cleaning mats and doing 'things of that kind.'Further there was evidence that for at least two years before the accident this shed was used by all the tenants as a place to sit down during the summer time; that there were chairs up there; and that the plaintiff found one or more rocking-chairs in this shed when he became a tenant....