Wakefield v. Boston Coal Co.

Braley, J. It is settled, that generally a traveller who suffers personal injuries from a defective public way is not as matter of law precluded from recovery simply because he had previous knowledge of the defect. Torphy v. Fall River, 188 Mass. 310, 314. Campbell v. Boston, 189 Mass. 7, 10. Under the authority of these decisions, the plaintiff’s conduct could have been found consistent with the ordinary care of prudent travellers. The volume of travel in both directions being large, if the plaintiff as he walked failed to see and a void,the hole into which he fell, although observing a coal team with the back of the wagon toward the building, with a workman shovelling scattered coal out of the gutter, the jury could say, that these facts failed to prove anything more than the exercise of the ordinary freedom of locomotion, which every traveller has the right to enjoy while using the public ways, without being held guilty of contributory negligence. Hennessey v. Taylor, 189 Mass. 583. The duty of the defendant, while using the coal hole as a means of delivering coal to its customer, to use proper precautions to protect pedestrians from personal injury, and that from the discharge of this duty it was not relieved by reason of a corresponding obligation on the part of the customer, has been fully defined in the recent case of French v. Boston Coal Co. 195 Mass. 334, and no further exposition would be warranted. If during delivery, by reason of the conditions of travel the opening became dangerous, then, if left either wholly uncovered or insufficiently guarded by the teamster, this neglect furnished evidence of negligence. French v. Boston Coal Co., ubi supra . Unless the cover was removed the sale could not be perfected, for delivery included transferring the coal from the wagon to the purchaser’s premises. The service of the teamster was entire, even if, in response to his inquiry, directions had been given to him by the purchaser to use the coal hole, and being within the scope of his employment, the defendant, as the- master, remained responsible for the negligent acts of its servant. Driscoll v. Towle, 181 Mass. 416. Oulighan v. Butler, 189 Mass. 287, 290. Exceptions overruled.