Chestnut v. Sawyer

Rugg, C. J. This is an action of tort whereby the plaintiff seeks to recover damages for personal injuries received by her while walking from the door of the post office in Foxborough to the public street. She slipped on ice upon land of.the defendant. The issues at the trial so far as now, material were, whether the defendant owed to the plaintiff any duty, and whether he had done or omitted to do any act in violation of that duty. Bernabeo v. Kaulbach, 226 Mass. 128, 131. The defendant was the owner of the building, in which was the post office, and of the open space lying between its door and the street. A lease executed to the United States post office department by the defendant was in evidence. Its terms neither imposed upon him nor relieved him from obligation to care for the open space, and by them, the post, office department did not assume obligation to care for the open space or for any part of the building, but the defendant was obliged to keep the leased premises in repair. It does not appear whether the lease covered the open space where the plaintiff received her injury. At the close of the evidence the plaintiff presented several requests for rulings, which were denied. They covered in general the duty owed by the defendant to the plaintiff and his breach of that duty. It is said in the exceptions, “The court in the matters touched by these requests instructed the jury as follows: ...” Four printed pages follow, wherein is apparently covered every aspect of the defendant’s legal duty and his failure to perform that duty. The saving of exceptions is in these words: “By the refusal of the court to give the instructions asked for, and by the aforesaid instructions given, the plaintiff has been aggrieved, and she hereby excepts to thé refusal of the court to give said instructions and to said instructions given.” At the argument at the bar of this court, exceptions to the refusals to grant the- requests were expressly waived. The only point relied upon or argued is that there was error in this single statement in the charge: [50] “Other people could invite this lady upon the premises if they had seen fit, — although the person that invited her was the person that undertook to see that it was safe. It may be that you think there is a difference between the doctor [the defendant]] and the plaintiff in that matter. The United States government may have been the person that invited the plaintiff on these premises. If it was, then' it was the United States government that undertook the duty of seeing that they were reasonably safe, no matter to whom they belonged, if it invited her to use them.” It is doubtful if any exception is now open to the plaintiff under these circumstances. The attention of the judge was not called to this or to any other particular part of the charge at its conclusion as being erroneous. Such an exception after waiver of specific requests is scarcely more than a general exception to a charge. In fairness to the judge, objection to specific portions of the charge should have been brought to his notice and the error upon which reliance was placed pointed out to him. Curry v. Porter, 125 Mass. 94. Barker v. Boring, 177 Mass. 389, 391. Hunting v. Downer, 151 Mass. 275. Commonwealth v. Jewelle, 199 Mass. 558. In any event, such an exception ought not to be sustained unless there was a substantial error in the charge which misled the jury. Rock v. Indian Orchard Mills, 142 Mass. 522, 529. Brick v. Bosworth, 162 Mass. 334, 336. No substantial error resulting in a mistrial is disclosed in the charge. The paragraph which, it is now urged, was harmful, was not open to objection. The action was not against the tenant but against the landlord. No express agreement between the landlord and tenant in respect of the use or repair of the open space in, front of the post office door appears in the' record. It was pertinent' for the jury to consider all the circumstances in arriving at a conclusion upon the vital issue whether the defendant owed the plaintiff any duty. One circumstance was the fact that a room in the building opening directly out of doors was under lease to a tenant who might be thought to invite the public to its entrance. Sweeny v. Old Colony & Newport Railroad, 10 Allen, 368, 372. Mackey v. Lonergan, 221 Mass. 296. Scanlon v. United Cigar Stores Co. 228 Mass. 481. Pizzano v. Shuman, 229 Mass. 240. Exceptions overruled. ■