Galligan v. Metacomet Manufacturing Co.

C. Allen, J. The plaintiff, a child seven years of age, seeks to recover damages from the defendant corporation for an injury sustained by her from falling down a precipitous place in a vacant lot where she was playing; the lot being in the rear of the premises where she lived, and separated therefrom by a picket fence, with a gate. But we are unable to find anything in the evidence reported which shows that the defendant owed, or in any way failed in, any duty to the plaintiff in respect to the condition of the lot. The only evidence tending to connect the defendant therewith was that the fence and gate were built by the defendant’s workmen about five years ago, and that the workmen had a key to the gate. There was no evidence to show that the defendant owned, or occupied, or had the care of the lot, or even that it had any right to place a fence along the brow of the precipice; or that, at the time of the accident, it used the road which leads through the gate, or left it open on the day of the accident; or that it ever, in any way, induced or invited the plaintiff or other children to come upon the vacant ground to play, or that either the defendant or any other corporation, or any person owning or occupying the lot, ever did anything more than merely to suffer and permit the use of the [528] lot by tbe children. Merely abstaining from driving the children off is not an invitation which would impose any duty or responsibility for the condition of the lot. Sweeny v. Old Colony Railroad, 10 Allen, 368. Davis v. Central Congregational Society, 129 Mass. 367, 371. Morrissey v. Eastern Railroad, 126 Mass. 377. Severy v. Nickerson, 120 Mass. 306. Carleton v. Franconia Iron & Steel Co. 99 Mass. 216. E. L. Barney, for the plaintiff. J. M. Morton ¿- A. J. Jennings, for the defendant. Judgment on the verdict for the defendant.