Smith v. Eagle Cornice and Skylight Works

• Citation: 167 N.E.2d 637,341 Mass. 139
• Parties: Francis SMITH et al. v. EAGLE CORNICE AND SKYLIGHT WORKS.
• Decision Date: 06 June 1960
• Court: United States State Supreme Judicial Court of Massachusetts

Page 637

167 N.E.2d 637

341 Mass. 139

Francis SMITH et al. v. EAGLE CORNICE AND SKYLIGHT WORKS.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued April 5, 1960.

Decided June 6, 1960.

I. Jack Levy, Boston (M. James Zelman, Boston, with him) for plaintiffs.

John F. Drum, Boston, for defendant.

Before WILKINS, C. J., and SPALDING, COUNIHAN, WHITTEMORE and CUTTER, JJ.

SPALDING, Justice.

In this action of tort there was evidence of the following. On June 19, 1956, Francis Smith (hereinafter called the plaintiff ¹), 'going on' seven years of age, lived with his family at 11 Columbia Terrace, Cambridge. Columbia Terrace consists of two buildings (accommodating thirty-three families) with a courtyard between. The children of these families often played in the courtyard. From May 15 through October, 1956, the defendant was engaged in repairing the roofs at Columbia Terrace, and in connection with this work its employees kept certain of their equipment and supplies (including four tin barrels of tar) in the courtyard. The defendant's foreman and 'the other workmen knew that there were children playing * * * [in the courtyard] all the time' and that 'at some times * * * [they touched] the barrels, the tar and other things.'

On the day of the accident (June 19, 1956) the defendant's employees, upon finishing their work for the day, left an axe, which they had used 'for opening up the [tar] barrels and chopping up the pitch,' in the courtyard near the barrels. Shortly after the employees had left the courtyard, the plaintiff, with two other boys, started playing 'follow the leader.' One of the tar barrels 'was down and there was a board on it and they were playing on that.' One of the boys, Gerald O'Leary, picked up an axe which he 'got from the ground beside the tar barrel,' and began 'chopping at the tar on one side of the barrel.' When Gerald stopped chopping, the plaintiff, who was on the other side of the barrel, put his hand down to get some tar and the axe slipped out of Gerald's hands and injured the plaintiff's fingers. That the axe which caused the accident was owned by the defendant is not disputed.

The case was submitted to the jury and verdicts for the plaintiff and his father were returned. The case comes here on the defendant's exceptions to the denial of its motion for directed verdicts and to a refusal to give a requested instruction.

1. We are of opinion that the jury could have found that the defendant was negligent in leaving the axe where it did, having in mind that it knew, or ought to have known, that children customarily played in the courtyard. Sojka v. Dlugosz, 293 Mass. 419, 423, 200 N.E. 554. And the fact that there was intervening negligence or wrongful conduct on the part of the plaintiff's companion, Gerald O'Leary, would not necessarily relieve the defendant from the consequences of such negligence. In the leading case of Lane v. Atlantic Works, 111 Mass. 136, at pages 139-140, it was said, 'The act of a third person, intervening and contributing a condition necessary to the injurious effect of the original negligence, will not excuse the first wrongdoer, if such act ought to have been foreseen. The original negligence still remains a culpable and direct cause of the injury. The test is to be found in the probable injurious consequences which were to be anticipated, not in the number of subsequent events and agencies which might arise.' This principle has been applied so often that extensive citation of cases is unnecessary. See, for example, Leahy v. Standard Oil Co. of N. Y., 224 Mass. 352, 360, 112 N.E. 950; Guinan v. Famous Players-Lasky Corp., 267 Mass. 501, 517, 167 N.E. 235; Morrison v. Medaglia, 287 Mass. 46, 49-50, 191 N.E. 133; Flaherty v. New York, N. H. & H. R. R. 337 Mass. 456, 462, 149 N.E.2d 670. In the Lane case it was held that the act of a child in wrongfully meddling with the defendant's truck which the defendant negligently had left standing in a street, thereby causing a piece of loose iron on the truck to fall on the plaintiff, did not relieve the defendant from liability to the plaintiff. It was for the jury to say whether the negligent act of the intermeddler was one which 'the defendants ought to have apprehended and provided against' (111 Mass. at page 141). There may, of course, be situations where the conduct of the third person is such that the defendant is not bound to anticipate it. Cases of this type are Horan v. Watertown, 217 Mass. 185, 104 N.E. 464, on which the defendant relies, and Smith v. Peach, 200 Mass. 504, 86 N.E. 908; Slater v. T. C. Baker Co., 261 Mass. 424, 158 N.E. 778, and Sullivan v. Griffin, 318 Mass. 359, 61 N.E.2d 330. See Galbraith v. Levin, 323 Mass. 255, 81 N.E.2d 560. But the case at bar is not of this type; rather it belongs to the class of cases illustrated by the Lane and similar cases, many of which are collected in Morrison v. Medaglia, 287 Mass. 46, at pages 49-50, 191 N.E. 133.

The...