Whittaker v. Town of Brookline
| Decision Date | 05 March 1945 |
| Citation | 60 N.E.2d 85,318 Mass. 19 |
| Parties | JOSEPHINE WHITTAKER v. TOWN OF BROOKLINE (and two companion cases [1]). |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
December 4, 1944.
Present: FIELD, C J., QUA, DOLAN, RONAN, & WILKINS, JJ.
License. Practice Civil, Question of law or fact.
Nuisance. Way Public: obstruction, nuisance, defect. Proximate Cause. Negligence, Contributory. Municipal Corporations, Liability for tort, Officers and agents. Notice. Real Property Independent contractor, Nuisance.
The terms of a permit, issued to a contractor by the superintendent of streets of a town "to obstruct, occupy, and encumber a space" of described dimensions "of the sidewalk, in front of the premises of" a certain shop of a stated number on a street "for the purpose of remodeling store front," were plain and free from ambiguity, and, the facts to be applied to the terms of the permit being undisputed at the trial of an action for injuries received from contact with a portion of a scaffolding originally placed at the location designated in the permit but afterwards moved to the sidewalk in front of adjacent premises for a purpose not stated therein, it was error to submit to the jury the question, whether the erection and maintenance of the scaffolding in the changed location was authorized by the permit.
A permit, issued by a municipal official "to obstruct, occupy, and encumber a space" of described dimensions "of the sidewalk, in front of the premises of" a certain shop of a stated number on a street for a specified purpose, did not authorize the erection and maintenance of a scaffolding for a different purpose in front of the premises adjoining those set forth in the permit, although both premises belonged to the same owner.
Maintenance by a contractor of a scaffolding obstructing a public sidewalk in a town in front of a bank building adjoining a shop instead of in front of the shop as designated in a permit issued to him by the superintendent of streets of the town, and for a purpose different from that stated in the permit, constituted a nuisance on the public way.
Both an independent contractor, who committed a nuisance by erecting a scaffolding obstructing a public sidewalk in front of certain premises, and the owner of such premises, who had contracted with the contractor for the erection of the scaffolding there, were liable for personal injuries proximately resulting from its presence.
Evidence, that a blind woman, proceeding along a sidewalk to go into a bank building in front of which had been erected a scaffolding constituting a nuisance on the sidewalk, missed a cross bar which on previous occasions she had felt there and tripped and fell on a board at the bottom called a "kick-piece" and was injured, warranted a finding that the nuisance was the proximate cause of her injuries and did not require a finding that she was guilty of contributory negligence.
A scaffolding, obstructing a public sidewalk in a town in a location other than that stated in a permit issued by the superintendent of streets of the town, might be found to be a defect within G. L. (Ter. Ed.) c. 84,
Section 15, and, on evidence that it had remained there for several days to the knowledge of the superintendent and might have been remedied by reasonable care and diligence, the town might be found liable for injuries proximately caused to one stumbling on a part of the scaffolding.
Knowledge on the part of the superintendent of streets of a town of a defect in a public sidewalk was knowledge of the town within G. L. (Ter.
Ed.) c. 84, Section 15.
THREE ACTIONS OF TORT for personal injuries alleged to have been sustained because of the scaffolding described in the opinion. Writs in the Superior Court dated April 6, 1942.
The cases were tried together before Swift, J.
L. J. O'Malley, (J.
W. Tushins with him,) for the plaintiff.
D. F. Lynch, for the defendant Reynolds. D. D. Leahy, for the defendant Brookline Trust Company.
D. J. Daley, for the defendant town of Brookline, submitted a brief.
These are three actions of tort to recover compensation for personal injuries sustained in circumstances set forth below. The actions are brought by the same plaintiff against the town of Brookline, the Brookline Trust Company and Cyril C. Reynolds doing business as Milton F. Reynolds & Son, respectively. The cases come before us on the plaintiff's exception to the action of the judge in allowing the defendant's motion in each case for a directed verdict.
The evidence in its aspect most favorable to the plaintiff would have warranted the jury in finding the following facts: On November 28, 1941, the defendant town through its superintendent of streets issued a permit to the defendant Reynolds, in the name of M. F. Reynolds & Son, granting permission [1] Under section 20 of the by-laws of the defendant town a permit was required for the erection of the structure in question, and the parties agreed that the superintendent of streets had authority to issue the permit. The premises occupied by Springer's Flower Shop were owned by the defendant trust company. They were numbered, as set forth in the permit, 1623 Beacon Street. They adjoined the premises of the trust company at 1627 Beacon Street. At the time of the accident the staging was located in front of the premises at 1627 Beacon Street occupied by the trust company. The staging had been so located that the walls of the trust company's building itself could be pointed by the Emerson Norris Company, but under the contract with the trust company Reynolds had the duty of supervising the staging and of taking care to put lights on it at night and to put them out in the morning. Reynolds obtained the permit, and first erected the staging in front of Springer's Flower Shop and later moved it to the front of the trust company's building in accordance with an agreement between Reynolds and officers of the trust company. The bills for the work of providing the staging were sent by Reynolds to the trust company. At the time of the accident the staging extended from a point a little less than four inches from the wall of the trust company's building, and was "about 20' long and about 4' 4'' wide, and the sidewalk is about 8' wide. There were cross bars in the upper part as bracings, leaving the inside open." There was a board at the bottom called a kick-piece, and a cross bar about waist high. The entire structure was six feet one inch high, and both ends were open except for cross bars. There was an opening in the center of the staging for an entrance to the trust company during alterations. On December 31, 1941, at about noon, the plaintiff, who was blind, was proceeding on the sidewalk to go to the trust company to cash a check. She had been there before, and on the last fifteen occasions she had felt the waist high cross bar on the staging. The "first time the barrier was up a woman caught hold of her and told her about the barrier and for about fifteen times after that she went to or by the premises feeling the bar" (the cross bar). At the time of the accident "she put up her hand and felt for the bar and tried to catch it but it was not there." She felt something at her feet which caused her to fall. The cross bar "had been there for about a month to her knowledge." The jury could have found that in the absence of the cross bar the plaintiff tripped over the "kick-piece" and was injured. No question is raised by the town with reference to the sufficiency of the notices of the accident given by the plaintiff.
At the conclusion of the evidence the judge allowed the defendant's motion for a directed verdict in the case against the town of Brookline, without passing then on the motions of the defendants in the cases against the Brookline Trust Company and Reynolds for directed verdicts, submitted to the jury the question, "Was the erection and maintenance of the scaffolding or staging, as it existed on December 31, 1941 authorized by Exhibits 2 and 3?" and instructed them that the question for them to decide was "whether or not this so called permit, this paper, was issued by the authorities of Brookline, granting permission to M. F. Reynolds & Son Co. [sic] to occupy a space not exceeding twenty feet in length, and four and a half feet in width of the sidewalk in front of the premises the Springer Flower Shop, No. 1623 Beacon Street, for the purpose of remodelling the store front," and that, ...
To continue reading
Request your trial