Delory v. Canny

Holmes, J. The ground on which the defendant seeks to sustain the ruling that the plaintiff could not maintain her action is, that the plaintiff offered no evidence that the cover to the coal-hole into which she fell was insufficiently guarded ; and that one of the plaintiff’s witnesses, Perrow, ^testified that, a month before the accident, he saw a stone weight attached to the cover, which, it is suggested, may have been removed just before the accident by a stranger to the defendant. But this testimony of Perrow was on cross-examination, and was met by other testimony that the cover could not be seen from the place from which Perrow said he saw it. The jury might have disbelieved Perrow on this point, and might have believed his direct testimony, that at the time of the accident the cover had no weight upon it, and that, on the evening before, it slipped off the hole when he stepped upon it. They might have inferred from these facts, connecting the earlier condition of the hole with them if necessary, Berrenberg v. Boston, 137 Mass. 231, that the cover was not provided with any weight or suitable appliance to prevent its being displaced. It is not argued that the defendant, who was the owner of the house, and, so far as appears, the actual occupant of the cellar, was not responsible for the permanent condition of the cover to the bole, or that the plaintiff could not have been found to have exercised due care. Exceptions sustained.