Curtis v. Kiley

26 N.E. 421, 153 Mass. 123, 1891 Mass. LEXIS 227

Opinion

Field, C. J.

As we understand the exceptions, there was evidence for the jury that the yard was under the general control of the defendants; that there was an entrance into and a passageway across the yard to the tenement occupied by Mrs. Lahey, which the jury might find the plaintiff was invited by the defendants to use; and that a trench had been dug either across this passageway or near to it, which rendered the passageway unsafe to those travelling upon it unless proper guards were put up. The principal contention of the defendants is, that, as the work of digging the trench, and of laying drain-pipes in it, and of restoring the surface of the yard to its original condition, was being done by one Condon, who was a competent person and not a servant of the defendants, but an independent contractor, and as the defendants retained no control over the manner in which this work should be done, they are not responsible. We think that the .case falls within the rule, that when the owner of premises which are under his control employs an independent contractor to do work upon them which from its nature is likely to render the premises dangerous to persons who may come upon them by the invitation of the owner, the owner is not relieved by reason of the contract from the obligation of seeing that due care is used to protect such persons. The owner cannot continue to hold out the invitation without being bound to exercise due care in keeping the premises reasonably safe for use according to the invitation. Stewart v. Putnam, 127 Mass. 403. Sturges v. Theological Education Society, 130 Mass. 414, 415. Woodman v. Metropolitan Railroad, 149 Mass. 335.

Exceptions overruled.