Sullivan v. Boston & A.R. Co.

• Decision Date: 09 May 1892
• Citation: 156 Mass. 378,31 N.E. 128
• Parties: SULLIVAN v. BOSTON & A.R. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

156 Mass. 378

31 N.E. 128

SULLIVAN v. BOSTON & A.R. CO.

Supreme Judicial Court of Massachusetts, Suffolk.

May 9, 1892

Action by Charles Sullivan, administrator, against the Boston & Albany Railroad Company, to recover damages for the death of Daniel Sullivan. The injuries declared on were caused by decedent coming in contact with two naked copper wires fastened to the roof of defendant's coal shed, used to conduct electricity from a dynamo-electric machine in an adjoining building, for the purpose of lighting defendant's station and works. It was disclosed on the trial that decedent, with other boys, were playing ball near the coal shed, when the ball was batted so that it fell on the roof, and decedent went after it; going by defendant's men then at work, and through the interior of the shed out on the roof of an L, through a window, and while on the roof came in contact with the wires. Permission to go on the roof was not asked of defendant's men; neither did they object when they saw decedent going. A witness was asked if he had seen other boys go upon the roof of the coal shed prior to the accident, to which the defendant objected, and the court excluded the question. The plaintiff then stated to the court that he was prepared to show that the place where the boys were playing ball was frequently resorted to by the boys in the neighborhood for that purpose, at or near the time of the accident; that while so playing ball the ball frequently lodged on the roof of the coal shed, and that the boys went upon the roof for the purpose of procuring the ball, through the premises, in the same manner as the intestate had gone, and that this had been going on for a series of years before the accident, and that he had several witnesses to testify to that fact; but the defendant objected to all evidence upon that head, and the court ruled that he should exclude it upon objection. Defendant had judgment by direction of the court, and plaintiff brings exceptions. Exceptions overruled.

COUNSEL

E.M Johnson, for plaintiff.

Samuel Hoar, for defendant.

OPINION

BARKER, J.

It is useless to discuss the plaintiff's exceptions to the exclusion of evidence, or to the refusal to submit the question of the due care of the plaintiff's intestate to the jury, as, in any aspect of the case, if the plaintiff's intestate was not a trespasser, which we do not decide, he was, at most, a mere licensee, and, so far as he was...