Fennell v. Peterson

By the court. This action of tort originally was brought against two copartners for the recovery of damages for personal injuries sustained by the plaintiff through the negligence of one of them. [599] Thereafter one of the defendants died, and the plaintiff discontinued as to his estate. The action was founded upon the personal conduct of the deceased copartner. The partners were liable jointly and also severally for the wrong of one committed in the course and within the scope of the business of the firm. Lothrop v. Adams, 133 Mass. 471. Brady v. Norcross, 172 Mass. 331, 337. McIntyre v. Kavanaugh, 242 U. S. 138. The discontinuance against one partner was not a release. It was no nearer a release than an agreement not to sue, which has been held not to be a release. Matheson v. O’Kane, 211 Mass. 91. The question of the plaintiff’s due care was for the jury. He stepped backward, as he was leaving the bar room of the defendant, into a trap-door opened a moment before. The degree of light or darkness about the place is not plainly shown by the record. The cases of McIntyre v. White, 171 Mass. 170, and Marwedel v. Cook, 154 Mass. 235, relied on by the defendant, are so clearly distinguishable that they need not be discussed. Exceptions overruled.