Moynihan v. Whidden

W. Allen, J. The declaration alleges that the rope and gin were carelessly and negligently left unguarded by the defendants, “whereby the plaintiff’s intestate, travelling along the highway called Pearl Street, using due care, was hurt.” The defendants had a right, under their building permit, to erect barriers and exclude the public travel from that part of the street where the plaintiff’s intestate was when injured. If they did not do this, but left the street open to public use, the plaintiff’s intestate in passing upon it was “ travelling,” within the meaning of that word in the declaration. If the defendants, as is contended, had a right to maintain their rope and wheel over or in close proximity to the sidewalk without excluding the public from it, they had no right to do it in such a manner as to endanger travellers upon the sidewalk. [292] If they did not exclude the public, and the wheel in the position and manner in which it was left by them was dangerous to persons lawfully using the sidewalk, it was their duty to guard it; and, if they negligently left it unguarded, they would be responsible for the consequences of such negligence. The evidence was conflicting in regard to the existence of barriers, and to the position and condition. of the wheel and rope; and the question of the defendants’ negligence was for the jury. The only other question is, whether there was evidence for the jury that the plaintiff’s intestate was in the exercise of due care. If his conduct was such as would be reasonably expected in a boy of his age, the jury might have found that he exercised due cáre. Plumley v. Birge, 124 Mass. 57. The facts that he knew that the building was being erected, that he had been ordered from the place a short time before he was injured by a person employed upon the building, and that, while passing along the sidewalk, he stopped for two minutes, at the call of his companion, with his hand upon the rope, which hung loosely within his reach as he stood upon the sidewalk, would not take from the jury the question whether he was in the exercise of due care. Exceptions sustained.