Davis v. Central Congregational Society of Jamaica Plain

Colt, J. To maintain this action, it must be shown that the defendant corporation was chargeable with some neglect of duty which it owed to the plaintiff, by reason of which she suffered [371] the injury complained of. The injury was caused by falling over a wall by the side of a passageway leading from the street to the front entrance of the defendant’s church edifice. It is alleged that this way was dangerous because of the failure of the defendant to provide by railing or other suitable protection against such an accident. The owner or occupier of real estate is under no obligation to keep the premises safe for those who enter -without inducement or invitation, express or implied, and the plaintiff must show that at the time of the injury she was passing over the way in question by the invitation of the defendant, and not by mere license or permission. The fact that the plaintiff was induced by the defendant to enter upon a dangerous place without warning, is the negligence which entitles the plaintiff to recover. Sweeny v. Old Colony & Newport Railroad, 10 Allen, 368. Carleton v. Franconia Iron & Steel Co. 99 Mass. 216. Larue v. Farren Motel Co. 116 Mass. 67. Severy v. Nickerson, 120 Mass. 306. The first question in the case is whether there was any evidence, which should have been submitted to the jury, that the plaintiff was induced by the express or implied invitation of the defendant to enter upon the premises. It appears that the plaintiff attended in the evening a religious meeting in the defendant’s house of worship, and on leaving, at its close, was injured in passing from the same to the street. The meeting which she attended was the meeting of a conference of congregational churches in the vicinity of Boston, which included the church connected with the defendant society, and also the church in Brighton of which the plaintiff was a member. This conference is an organization distinct from /the religious societies of which it is composed, and its periodical meetings are held in the houses of worship of the different churches by turn. There was evidence that the meeting which the plaintiff attended was held in the defendant’s church by the permission of the pastor, approved or ratified by the officers of the church and society, who had the care and custody of the building, and the right to grant the use of it for religious services of this description. It also appears that, in accordance with the usages of the conference, notices were sent to the several churches, containing a genera] invitation to all the members of the same to attend this meeting, [372] and that one of these invitations was read from the pulpit of the church in Brighton on the Sunday before. This evidence would clearly justify a jury in finding that the plaintiff came by the defendant’s invitation. The authority given by the defendant to the conference to hold its meeting in this place implied an authority to secure an attendance by invitations given in the known and usual manner, and it is unnecessary to inquire whether the construction of this passageway, thus obviously left open to the free use of all who might desire to attend religious service in the church, would not in itself imply such an invitation as would impose on the defendant the duty of making it reasonably safe to those who in the exercise of due care might use it. The application of the rules on which the defendant’s liability depends is not affected by the consideration that this is a religious society, and that the plaintiff came solely for her own benefit1 or gratification. It makes no difference that no pecuniary profit or other benefit was received or expected by the society. The fact that the plaintiff comes by invitation is enough to impose on the defendant the duty which lies at the foundation of this liability; and that too although the defendant in giving the invitation was actuated only by motives of friendship and Christian charity. In Sweeny v. Old Colony Newport Railroad, above cited, the defendant was held liable, because the plaintiff was induced to enter upon a private crossing over the railroad, although he had no business with the corporation, and simply attempted to cross for his own convenience. And this defendant, as an incorporated religious society and as owner and occupier of the premises in question, is subject to all the duties and liabilities which are incident to the ownership and possession of real estate. On the question whether the defendant was chargeable with neglect of duty in not providing a reasonably safe way to and from the church, we cannot say, as matter of law, that the construction, location and direction of the way, with the wall and declivity by its side, the want of a proper railing, and the insufficiency of light, would not justify a finding that in the night time it was unsafe for the use of a person exercising ordinary care and prudence. Nor can we say that the evidence shows conclusively [373] that the plaintiff was not in the exercise of due care. Mayo v. Boston & Maine Railroad, 104 Mass. 137. But the fact that this court considers the case as one proper to be submitted to the jury on these points is not to be taken as an indication of an opinion that the finding should be for the plaintiff. It is not a question here of the preponderance of evidence; and it is often the duty of the court to submit a question of fact to the jury, on the plaintiff’s request, when the weight of evidence may appear to be against him. New trial ordered.