Barber v. C. W. H. Moulton Ladder Co.

Braley, J. The plaintiff, a lad eleven years of age, was standing in a private way in Somerville known as Earle Street, when the defendant’s gate fell upon him, causing serious personal injuries for which the jury have awarded substantial damages. The first contention is, that there is no evidence which would warrant a finding that at the time of the accident the company owed him any duty of exercising reasonable care for his safety. It appeared and the jury properly could find that while not a “through street,” there were houses, in one of which the plaintiff’s father lived, and other buildings, including the defendant’s, on the street, which was used for “free traffic” and “foot travel” in the same manner as " any other street,” and that the plaintiff had no other means of access to his home. The establishment or location of the way whether by grant or prescription, is not shown, and there is no evidence that the defendant had title to any portion of the soil of the way, or even to the land abutting on the way which it occupied for the transaction of business. The plaintiff being neither a trespasser nor a mere licensee, the defendant therefore was required to take reasonable precautions in the maintenance and management of the gate to avoid injury to him when in the street and in the exercise of due care. Moffatt v. Kenny, 174 Mass. 311. Coles v. Boston & Maine Railroad, 223 Mass. 408. While the exceptions recite that, apart from the request to order a verdict for the defendant, no exceptions were taken “with respect to the court’s disposition of the requests for rulings or to the charge,” the question, whether as matter of law the plaintiff is chargeable with contributory negligence is open. The jury were warranted in finding in answer to the third question, that the falling of the gate was not caused “wholly or in part by any act of the plaintiff in climbing over the gate.” It is enough to say that on the evidence the jury could find that, if the gate, had been secured as the defendant contended and as described by its general manager, the plaintiff’s act in climbing over it in making [510] Ms exit from the yar4 did not contribute to its subsequent fall. The plaintiff’s conduct after he was in the street in walking back to the gate where he peered through the opening between the end of the gate and the dry house to ascertain whether Ms companions were coming from the yard, and Ms failure to go directly home “because there used to be some dogs in a neighbor’s yard, and he stooped down” after taking about six steps from the gate “to look under thé neighbor’s gate £on the opposite side of the street] to see them,” were for the consideration of the jury. It could not have been ruled as matter of law that he acted carelessly. Dowd v. Tighe, 209 Mass. 464. The remaining contention is, that there is no evidence of the defendant’s negligence with reference to the condition of the premises, “nor was there evidence of any negligence on the part of any of the defendant’s employees while acting witMn the scope of their employment.” The jury, however, thought otherwise, and in answer to the first and second questions found the defendant to have been negligent in the construction or maintenance of the gate, and that the fall of the gate was caused by the negligence of its employee while acting within the scope of Ms duty. It was undisputed that the gate was maintained and frequently used by the defendant in its “woodworking business,” and the jury well could find on all the evidence, that the overhead iron track on wMch the gate originally was hung had been removed, and the travelling wheels, with the exception of two which were useless, had been taken off. Because of these changes the gate rested upon a roller of wood placed on the ground by the use of wMch it was opened and closed and, when shut at the time of the accident, the upper part at one end leaned against a shed, the other end being secured and held in an upright position by a rope fastened to an iron hook in the side of the dry house, or to a steel rail running across the passageway. It also appeared that before the accident the gate had been found prostrate and that the defendant’s yard foreman had restored it in the position above described. The defendant on the record was required in so far as travellers on the way were concerned to keep the gate on its own premises. How far its stability or structural strength had been impaired by the changes or by the method of its use, was for the jury, as well as the question, whether the defendant so maintained and managed [511] -the gate as not to endanger the plaintiff while using the way. Gorham v. Gross, 125 Mass. 232, 239. Shepard v. Creamer, 160. Mass. 496. Smith v. Edison Electric Illuminating Co. 198 Mass. 330. Smith v. Gammino, 225 Mass. 285. A further finding was justified that the defendant’s yardman, who was following the plaintiff as he climbed over the gate, was seen “fumbling” with the rope when the gate fell, and that after the accident the rope unbroken was found attached to the gate. It would seem to be obvious on the evidence, or at least the jury could so find, that among other duties the yardman had charge of the gate and knew of its dilapidated condition. If with knowledge, or if in the exercise of reasonable care he should have known, of the plaintiff’s presence within a few feet of the gate, he unfastened the rope thereby causing its fall, the defendant is responsible for his negligence. Higgins v. Bickford, 227 Mass. 52, 54, and cases cited. We are accordingly of opinion that a verdict for the defendant could not have been ordered, and the exceptions should be overruled. 1 So ordered.