Khron v. Brock

11 N.E. 748, 144 Mass. 516, 1887 Mass. LEXIS 223

• Court: Massachusetts Supreme Judicial Court
• Decided: May 12, 1887
• Status: Published

Opinion

Deyens, J.

The first ruling requested was that the defendant was not liable in this action, unless the zinc (by the falling of which the injury occurred) was unfastened by him and was negligently and carelessly so left unfastened. This instruction should not have been given. It is the duty of the owner of a building under his own control and in his own occupation, as between himself and the public, to keep it in such safe condition that travellers On the highway shall not suffer injury. Gray v. Boston Gas Light Co. 114 Mass. 149, and cases cited.

It was a disputed question whether one Blevins, who had contracted with the defendant to make certain repairs on the roof of his.house, had completed his contract. The second, third, and fourth instructions requested, which, if given, would relieve the defendant from any responsibility, if the carelessness of Blevins in leaving the zinc unfastened was the primary cause of the injury, necessarily imply that the owner of the building was not responsible for the unsafe condition, even if the contractor had completed his contract and had ceased to work. The case upon these points was left to the jury, to determine whether the plaintiff’s injury was caused by the unsafe condition of the building. What, in terms, the instructions were, the exceptions do not show, but it is evident that the defendant was only made responsible for the unsafe condition of the building itself, and not for any carelessness of Blevins as an independent contractor in actually performing the work. It cannot be contended that, if the work was completed, the owner would not be responsible for injuries resulting from the imperfect construction or dangerous condition in which it was permitted by him to remain. Gorham v. Gross, 125 Mass. 232.

The fifth instruction requested was given in substance, and the defendant has urged no objection thereto.

As to the sixth instruction requested, whether the defendant had any right from the city authorities to enclose the sidewalk in the manner described does not appear. While the presiding judge did not adopt the request of the defendant, he gave full instructions upon the question whether the plaintiff was lawfully on the street or sidewalk, in the exercise of due care. The judge was not required to adopt the precise words of the defendant, and, as his instructions are not stated, it must be inferred, as against the excepting party, that they were correct, and sufficient to cover the inquiry. Exceptions overruled.