Pilon v. Easthampton Gas Co.

• Decision Date: 27 February 1924
• Citation: 142 N.E. 640,248 Mass. 57
• Parties: PILON v. EASTHAMPTON GAS CO. (two cases).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

248 Mass. 57

142 N.E. 640

PILON

v.EASTHAMPTON GAS CO. (two cases).

Supreme Judicial Court of Massachusetts, Hampshire.

Feb. 27, 1924.

Exceptions from Superior Court, Hampshire County; H. T. Lummus, Judge.

Actions in tort by Emma Pilon, administratrix, and Raymond Pilon, p. p. a., respectively, against the Easthampton Gas Company to recover for injuries to a child. Decision for defendant, and plaintiffs bring exceptions. Exceptions overruled.

J. L. Lyman and D. A. Foley, both of Easthampton, and R. P. Stapleton, of Holyoke, for plaintiffs.

J. B. Ely, W. C. Giles, and W. A. McDonough, all of Springfield, for defendant.

BRALEY, J.

The defendant had an open yard at its works, a part of which is referred to in the record as a place where logs were shaped into telephone poles, and the butts painted with a coat of heated carbolineum, or melted tar. It was uncontradicted that, on the day of the accident, some poles had been chipped and were to be painted. The tar had been on the fire for possibly 20 minutes when it was lifted off, and placed about a foot from the fire, and 7 feet behind the poles. The can having leaked through the parting of the seams and spread over the ground until the can was one-half or three-quarters full, an employee, one Shaw, who was in charge of the work, went away to procure another can, leaving no one to care for the fire or the tar. When returning he noticed the plaintiff in the second case, a child about 7 years of age, running towards him, who meanwhile had fallen into the fire and been severely burned. The jury could find that the plaintiff was one of a group of boys who were there while Shaw ‘was having the fire,’ and that ‘it was dangerous for them to be near the tar.’

It is contended that the plaintiff was on the premises by the express or implied invitation of the defendant, and his due care being for the jury, there was evidence of the defendant's negligence. But it appears, from the plaintiff's own testimony, that on the afternoon of the day in question, and by invitation of other boys who were going to the premises to get coke, he went with them and saw a man there, and a pan of tar in a fire near the poles.

‘We picked a bag full of coke and then two were picking coke and two were picking chips. I was picking chips on the poles. I went back and fell into the fire. The tar was not in the same place it was when I first saw it. I did not know it had been changed. I took one step off the loge before I fell...