Holmes v. Drew

The jury might have inferred from the facts stated that the defendant laid out and paved the sidewalk on her own land in order that it should be used by the public as the sidewalk of the street, and allowed it to remain apparently the part of the street that was intended to be used by foot passengers. This would amount to an invitation to the public to enter upon and use as a public sidewalk the land so prepared, and the plaintiff so using it would have gone upon the defendant’s land by her implied invitation, and she would owe to him the duty not to expose him to a dangerous condition of the walk which reasonable care on her part would have prevented. Sweeny v. Old Colony & Newport Railroad, 10 Allen, 368. Carleton v. Franconia Iron & Steel Co. 99 Mass. 216. Oliver v. Worcester, 102 Mass. 489. Davis v. Central Congregational Society, 129 Mass. 367, 371. Murphy v. Boston & Albany Railroad, 133 Mass. 121.

The place was not a way, a,nd the Pub. Sts. c. 52, § 19, do not apply. The ground of the defendant’s liability is not her obligation to keep a way in repair; but her obligation to use due care that her land should be reasonably safe for the use which she invited the plaintiff to make of it. Whether she invited the plaintiff to cross her land on a paved walk, whether the pavement was in such a condition as to render walking over it dangerous, whether it was in that condition through the negligence of the defendant, and whether the plaintiff was hurt in consequence while in the exercise of due care, were questions proper to be submitted to the jury.

Fxceptions sustained.