Corrigan v. Union Sugar Refinery

98 Mass. 577

Opinion

Gray, J.

It is unnecessary in this case to consider whether, upon the facts offered to be proved, the way over the defendants’ land, where the plaintiff received the injury sued for, was a public way; or whether, if it was not a public way, the defendants had so held it out as such, or otherwise induced the plaintiff to pass over it, as to make them responsible to him for any hole or defect therein, within the rule discussed in Sweeny v. Old Colony Railroad Co. 10 Allen, 368, and Gautret v. Egerton, Law Rep. 2 C. P. 371, cited for the defendants. The material question is, whether the keg fell upon the plaintiff’s head by reason of the negligence of the defendants’ servants. If it did, then, whether this was a public or a private way, and whether the plaintiff was passing over it in the exercise of a public right, or upon an express or implied invitation or inducement of the defendants, or by their mere permission, he was rightfully there, and may maintain this action. Even if he was there under a permission which they might at any time revoke, and under circumstances which did not make them responsible for any defect in the existing condition of the way, they were still liable for any negligent act of themselves or their servants, which increased the danger of passing and in fact injured him. Gallagher v. Humphrey, 6 Law Times, (N. S.) 684. Sullivan v. Waters, 14 Irish C. L. 474. Indermaur v. Dames, Law Rep. 1 C. P. 274. Byrne v. Boadle, 2 H. & C. 722. Stewart v. Harvard College, 12 Allen, 67.

Case to stand for trial.