Toomey v. Sanborn

Field, J. The single exception argued by the defendant is to the refusal of the court to rule “ that on the whole evidence the plaintiff was not entitled to recover under the third count.” It appears that estate No. 5 was owned by the wife of the 33 defendant, but had been let to a tenant who occupied it; that the defendant and his wife boarded and lived with the tenant in the house on the estate; that the defendant was .personally-supervising repairs which were being made upon the house, and had directed that a plank be removed from the floor of the passageway; and that this had caused a dangerous hole to be opened in the floor, which was left unguarded and into which the plaintiff fell. There was evidence that the passageway had been constructed and was maintained for the purpose, among other things, of affording a back entrance to the house, and was, as the defendant knew, constantly used by the servants of the city of Boston for the purpose of removing the ashes and offal from the house, and that the plaintiff, as such servant, was rightfully using the passageway on the implied invitation of both the owner and occupant of the house for this purpose and was in the exercise of due care. The case taken most favorably for the defendant is, that he caused to be opened in a private way a dangerous pitfall, into which the plaintiff, while rightfully using the way with due care, fell. The ruling was right. Exceptions overruled.