Larue v. Farren Hotel Co.

Ames, J. Upon the evidence detailed in this bill of exceptions, it would have been improper for the court below to rule as a matter of law that the defendant was not liable. The manner in which the building was constructed, and in which that part of it occupied by Budlong was used, might be considered as an invitation to all persons having lawful occasion to visit that part of it, to make use of the paved sidewalk as a means of access, and as an assurance that with due and reasonable care they might do so with safety. Sweeny v. Old Colony Railroad, 10 Allen, 368. Carleton v. Franconia Iron Co. 99 Mass. 216. If the excavation was in such a situation and of such a character as to be dangerous to persons going in and out at Budlong’s door, while in the exercise of due care, it became the duty of the defendant to take all proper precautions, by means of barriers or grates, to make the passage way reasonably safe. No exceptions were taken to the judge’s charge upon this part of the case. It was a question of fact, and was submitted to the jury with proper instructions. Upon the question whether the action should have been brought against this defendant, or against its tenant Budlong, it is to be observed that the cause of the injury was not to be found in any neglect of the latter to keep the sidewalk in repair. The ex 69 cavation, if a fault at all, was a fault in the original construction of the building, and was of course intentional on the part of the defendant. It had the general supervision of the whole, and had the entire control of the premises so far as was necessary to keep them and the approaches in proper and safe condition, and therefore this liability rested upon it. Kirby v. Boylston Market Association, 14 Gray, 249. Exceptions overruled.