Toomey v. Sanborn

• Decision Date: 07 January 1888
• Citation: 14 N.E. 921,146 Mass. 28
• Parties: TOOMEY v. SANBORN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

146 Mass. 28

14 N.E. 921

TOOMEY v. SANBORN.

Supreme Judicial Court of Massachusetts, Suffolk.

January 7, 1888

COUNSEL

H.E. & E.R. Swasey, for plaintiff.

The request for a ruling that, upon the whole evidence, the plaintiff was not entitled to recover, was rightly refused. It was a question for the jury upon the whole evidence, under proper instructions. The defendant owed to the plaintiff the duty of exercising proper care for his safety. The defendant created and knew the danger; it was his duty to take such measures to protect the plaintiff from the danger as, under all the circumstances, would be reasonable. The injury to the plaintiff was one which the defendant could, by the exercise of reasonable thoughtfulness, have foreseen. An accident from negligence on private premises is a good ground of action "when the injured party has been induced to come by personal invitation, or by employment which brings him there or by resorting there as to a place of business or of general resort, held out as open to customers or others, whose lawful occasion may lead them to visit there." The instruction asked for, "that, if there was a sufficient space left between the opening and the right-hand wall for safe passage for the plaintiff, he could not recover," required the court to rule, as matter of law that the defendant was not liable. The judge was not bound to give instructions based upon assumed facts in the exact words of counsel. Improvement Co. v. Stead, 95 U.S. 166. The objections to the admission of evidence were untenable. The two ordinances of the city of Boston were admissible. City ordinances touching the subject-matter involved in a particular case, and relating either to the management of a particular thing or to individual conduct, have always been admitted in evidence in this commonwealth; their effect being properly limited by suitable instructions. See Wright v Railroad Co., 4 Allen, 283; Railroad Co. v. People, 12 N.E. 207. It is submitted generally that, if any error was committed by the court below, it was immaterial and harmless, and that the verdict should not be disturbed.

E. Avery, for defendant.

The relation of the defendant to the passage-way is not set out in the third count, nor is it alleged that he was under any obligation or owed any duty to the plaintiff in relation thereto, unless it is implied in the use of the term "carelessly and negligently." Sweeny v Railroad, 10 Allen, 372. The evidence fails to show that the defendant bore any other relation to the passage-way than that of a mere volunteer, gratuitously superintending and directing the workmen. Higgins v. McCabe, 126 Mass. 20, and cases cited in opinion. The evidence fails to show that the defendant, or any one for whom he was acting, held out any inducement or invitation, express or implied, to the plaintiff to enter on or use the passage-way, or knew that the plaintiff was using, or intended to use, the passage-way. The plaintiff was not using the passage-way for the purpose of any business with the defendant or his wife. Carleton v. Iron-Works, 99 Mass. 216; Davis v. Congregational Soc., 129 Mass. 367. There was no evidence of gross carelessness or negligence on the part of the defendant. The court should have instructed the jury to return a...