Norris v. Hugh Nawn Contracting Co.
| Decision Date | 18 May 1910 |
| Citation | 206 Mass. 58,91 N.E. 886 |
| Parties | NORRIS v. HUGH NAWN CONTRACTING CO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Bartlett & Anderson, for plaintiff.
John Lowell and James A. Lowell, for defendant.
This is an action of tort to recover for the death of the plaintiff's son by the fall of a derrick in the defendant's quarry. The deceased was a newsboy nearly 14 years of age, and he had been engaged in delivering and selling papers not long before the accident, which happened at 25 minutes past 7 o'clock in the morning.
We will assume in favor of the plaintiff that there was sufficient evidence to entitle him to go to the jury on the questions whether his intestate was in the exercise of due care and whether the fall of the derrick resulted from a defect which might have been discovered by the exercise of reasonable care and diligence on the part of the defendant's servants.
There was a driveway which passed into the quarry from Paul Gore street, and around a stone crusher near the street, and out into the street again over a part of the same road. It was 400 to 500 feet from this street across the quarry to Boylston street. It was in dispute whether there was a path leading from the road, near the stone crusher, across the ledge to Bolyston street; but it appeared that workmen on the quarry and other persons sometimes walked there, and the plaintiff's intestate was walking in this course when the derrick fell upon him. There was evidence from different witnesses that there were signs put up in that part of the quarry, on which were the words, 'No trespassing.' The most that could be contended in favor of the plaintiff on the question whether this was a way for the use of the public, was that persons were permitted to go there as licensees. Moffat v. Keeney, 174 Mass. 311 54 N.E. 850; Bowler v. Pacific Mills, 200 Mass. 364, 86 N.E. 767. If the plaintiff was walking through the quarry merely as a licensee, the defendant owed him no duty to keep its derrick safe, so that he might not be injured by its fall from an accident. See cases cited above.
The plaintiff contends that his intestate was walking there by invitation, for the purpose of selling newspapers to the workmen on the quarry. Upon this branch of the case the evidence relied on by the plaintiff came almost entirely from witnesses who testified to the boy's previous declarations. There was testimony from his employer, a news agent, that the engineer who was employed at the engine house, which was just by the road to the stone crusher, about 50 feet from Paul Gore street, was the only regular customer that he had on the ledge, that he had a book containing a list of the regular customers on the route, and that Ralph, the deceased, had a copy of it, called the 'route book,' and that it was Ralph's custom to collect money weekly from the engineer. He also gave testimony tending to show that the deceased sometimes sold papers to other workmen in the quarry. He said 'that Ralph came to him one morning and said that he was going to sell papers in the quarry; that he said to Ralph, 'They won't let you,' and Ralph said, 'Well, the boss of the quarry has asked me to go and sell him papers, and to sell papers in the quarry, as the workmen desire it;' that after that conversation Ralph went upon that route.'
The plaintiff testified that his son told him that he had two regular customers at the ledge, the engineer and the foreman also that he sold papers to other men working on the...
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