Gill v. Carrier
Gill v. Carrier
Opinion of the Court
This is the plaintiff’s exception to the direction of a verdict for the defendant. Taking the evidence most favorably for the plaintiff the jury could have found facts stated in this and following paragraphs. The plaintiff shortly after 9:00 p.m. on April 30,1953, was crossing the grounds of the State House in Boston to go to her home on Temple Street. “As she was going around by the State House she met three students coming up from Suffolk Law School, indicating to her that the steps leading up from Derne Street [which she knew had been blocked off at prior times] were open to the public.” She walked down the steps and saw at the bottom a steep drop to the ground of about three feet. There was a big street light directly across the street the light from which was “all right when it’s cement,
“The stairway in question is one to which the public ordinarily have a right of access.” On April 30, and prior days, between the hours of 8:00 a.m. and 5:00 p.m., the defendant, under a contract with the Commonwealth, had been making repairs and alterations in the courtyard of the State House and on the Derne Street steps.
The plaintiff had known that construction work had been going on in the street and on the stairs for some months and on prior occasions had seen the area blocked off by sawhorses with red lights on them on top of the stairway and also blocking the entry from Derne Street. At the time of the accident there were no signs at the top of the stairs, and no horses with lanterns on them. “She went down the stairs to the bottom and did not see any horses nor any barricade . . . .” The plaintiff before descending the steps had seen sawhorses at the top of the steps “pushed aside.” There were always horses in the area at the top of the steps and “for use in partitioning off the cars . . . when the Legislature is in the State House.”
There was no error in directing a verdict for the defendant.
The obvious excavation which the plaintiff saw gave her notice that at least so much of the area of the steps, and the adjacent street, as was within the excavation had been withdrawn from public use so that whatever rights she had on the unbarred steps, as an invitee in the general public right, ended there. See Chronopoulos v. Gil Wyner Co. Inc. 334 Mass. 593.
The question here is like that presented in the Chronopoulos case where the defendant had placed three planks across a trench so as to make a crossing, at the point of
We do not think that the absence of a warning at the top of the steps requires a different ruling. Although there was evidence pointing the other way, we cannot say that the jury could not have concluded that the plaintiff, when at the top of the steps, reasonably expected to find a crossing of some kind, intended for public use, at the foot of the steps. And we assume that the jury could have found, from the absence of a barrier or warning at about 9:00 p.m., that the defendant had failed in his duty in not placing sawhorses and lanterns. There is no evidence that any such had been placed on April 30. If there had been such evidence, we assume that it could have been found that the defendant was negligent in not checking to see that they were kept in place. Morrison v. Quincy Market Cold Storage & Warehouse Co. 323 Mass. 536. Thus it could have been found that the defendant induced the plaintiff to descend the steps. But we do not think this can be deemed, in law, an inducement or invitation to cross at a place which could not reasonably be deemed a public crossing. In the light of the situation seen by the plaintiff at the bottom of the steps, the reasonable explanation of the absence of sawhorses at the top was either the defendant’s lack of care, or intermeddling; it was not that there was a public crossing. On the evidence there is, of course, no basis for concluding that such detour as was required if the trench were not crossed would have been so burdensome that the plaintiff had no alternative course which reasonably she should have been expected to take.
In Winship v. Boston, 201 Mass. 273, the plaintiff, though aware of the excavation, was walking on the public way beside the excavation, and not, as here, trying to cross, it, and could recover for the defendant’s negligence. Compare also Norwood v. Somerville, 159 Mass. 105.
We need not determine whether the plaintiff was contributorily negligent as a matter of law.
Exceptions overruled.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.