Weldon v. Prescott

Hammond, J. Phoenix Bow was a private way; and, while there was evidence that it was used to a considerable extent by the public as such, the presumption, in the absence of anything to the contrary, is that it was constructed and maintained for the use of the owners and occupants of the abutting lands and such other persons as had occasion to visit them, and that the use of it by the public was merely permissive. Moffatt v. Kenny, 174 Mass. 311. In this case there is nothing to control that presumption. The plaintiff contends that at the"time of the accident he was using the street not as one of the public, but as one having business with Shute, a tenant of a portion of the Hotel Thorndike which abutted on the way. We think there is no foundation for that claim. Upon the plaintiff’s own uncontradicted testimony he entered the way for the purpose of going to his place of business on Washington Street, and with no intention of stopping either at the Hotel Thorndike or any other building or land abutting on the way. When he arrived about opposite the hotel, Shute “ attracted his attention and called him into his (Shute’s) place of business.” Shute wished to see the plaintiff “upon a matter of business, and after a few moments’ conversation, the plaintiff, together with one Whittier, left” the build-' ing and entered upon the way “ for the purpose of proceeding to the plaintiff’s own place of business.” After proceeding a short' distance with that intention, he fell into the hole and was injured. The purpose of entering the street and passing through it had no reference whatever to his call upon Shute. That call was a mere episode. Before he responded to Shute he was upon [417] the street as one of the public, as a mere licensee, and after he left Shute’s store he resumed his original position as such. The principles governing the duty which the owner of land or a building abutting on a private way owes to a mere licensee have been so thoroughly discussed in recent cases that it is necessary only to refer to them. This case is distinguishable from cases like Holmes v. Drew, 151 Mass. 578, and must be classed with cases like Moffatt v. Kenny, 174 Mass. 311. Under the principles laid down in the latter case and cases therein cited, it is clear that the evidence would not have warranted a verdict for the plaintiff. This conclusion as to this part of the case renders it unnecessary to consider the other grounds of defence. Hxeeptions overruled.