ROBERT DENNEHY vs. JORDAN MARSH COMPANY (and a companion case [Note 1]).

RONAN, J. The first action of tort to recover damages is brought by a minor, hereinafter called the plaintiff, for an injury sustained to his eye by coming into contact with a nail while he was attempting to get out of a packing case or crate, in which he had been playing and which had been left in the yard of the premises where the plaintiff lived by employees of the defendant a few hours before when they removed a refrigerator from the crate and delivered the refrigerator to one of the tenants who also lived upon the premises. The second action is brought by the father of the plaintiff to recover consequential damages. The defendant excepted to the denial of its motions for directed verdicts.

The defendant contends that there was no evidence that it was under any obligation to a customer to uncrate the refrigerator and that, if its employees saw fit to remove the crate, they did so as gratuitous employees of the customer. The jury could properly infer that the defendant, a department store, does not ordinarily deliver household equipment by leaving it in the yard of the customer, and that it was the duty of the defendant to place it in the customer's apartment where it was intended to be used. They could also assume that the refrigerator would not be delivered unpacked, and that the crate in which it was encased would be removed by the defendant's employees in order that the refrigerator would be available for use by the customer. The removal of the crate out of doors and its disposal in the yard by the employees of the defendant were incidental to the delivery of the refrigerator. It could have been found that the placing of the crate in the yard was done in the course of their employment, in the furtherance of the defendant's business, and in the performance of the duties which were entrusted to them by the defendant, or, in other words, that the action of the employees came within the scope of their employment. Hankinson v. Lynn Gas & Electric Co. 175 Mass. 271.

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Grant v. Singer Manuf. Co. 190 Mass. 489. Robinson v. Doe, 224 Mass. 319. Denny v. Riverbank Court Hotel Co. 282 Mass. 176. Kees v. Wm. Filene's Sons Co. 297 Mass. 142. O'Brien v. Freeman, 299 Mass. 20. Schultz v. Purcell's, Inc. 320 Mass. 579.

The leaving of the crate in the yard could be found to be negligent. The evidence was ample to support findings that the crate had been abandoned by the defendant's employees, and that in playing in it the plaintiff was not a trespasser. Sarna v. American Bosch Magneto Corp. 290 Mass. 340. Compare Falardeau v. Malden & Melrose Gas Light Co. 275 Mass. 196. If the employees of the defendant did not have actual knowledge that small children of the tenants used the yard as a playground, they took the risk that this might be so and should have reasonably anticipated that, if such use was in fact made of the yard by small children, they would use the crate as a plaything and might thereby be injured. The defendant cannot justly complain that if the children should meddle with this crate, which was five feet high and three feet in width and length with a side which could be swung open, exposing the nails from the three edges of the side where it had been detached from the framework of the crate, they might use this side as a door in entering or leaving the crate. That would be a natural consequence of leaving it where they could use it in play. It was not necessary that the defendant's employees should foresee that the particular injury sustained by the plaintiff would occur, because it was enough if they ought to have reasonably anticipated that harm to a child would be likely to occur by reason of the placing of the crate in the yard. Hollidge v. Duncan, 199 Mass. 121. Guinan v. Famous Players-Lasky Corp. 267 Mass. 501. Texeira v. Sundquist, 288 Mass. 93. Newlin v. New England Telephone & Telegraph Co. 316 Mass. 234. There was no evidence that the employees notified the owner of the premises or any tenant that they had abandoned the crate and had left it upon the premises. Sample v. Melrose, 312 Mass. 170. Compare Marengo v. Roy, 318 Mass. 719. A defendant may be found liable to one who has been injured while rightfully on the premises of another

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where the premises have been rendered unsafe because of the negligent manner in which goods were delivered there by the defendant's employees. French v. Boston Coal Co. 195 Mass. 334. Wakefield v. Boston Coal Co. 197 Mass. 527. Gillis v. Cambridge Gas Light Co. 202 Mass. 222. Leahy v. Standard Oil Co. of New York, 224 Mass. 352. McGinley v. Edison Electric Illuminating Co. of Boston, 248 Mass. 583. Sarna v. American Bosch Magneto Corp. 290 Mass. 340. Almeida v. Socony-Vacuum Oil Co. Inc. 314 Mass. 28.

The defendant contends that the plaintiff was guilty of contributory negligence. There was evidence that the woman to whom the refrigerator had been delivered learned two hours after its delivery that the crate had been left in the yard, and saw her daughter, aged four, and the plaintiff, aged four years and five months, playing inside the crate. She told them to get out and chased them to another part of the yard. The plaintiff subsequently returned to the crate, opened it, went inside, and was injured while attempting to get out. The defendant states in its brief that the plaintiff was old enough to exercise care for his own safety and that the case was tried upon this basis. We consider the question in the manner in which it has been presented. The negligence of the plaintiff was an affirmative defence to be set up and proved by the defendant, G. L. (Ter. Ed.) c. 231, Section 85, and the burden was upon the defendant to prove that the plaintiff failed to exercise the care of an ordinary child of his age. The propensities of small children to be attracted by the crate, which had recently been left in the area in which they played, and their lack of appreciation of any dangers that might attend their use of the crate must be considered. While the plaintiff was "too young to have much prudence," McDonough v. Vozzela, 247 Mass. 552, 556, he might "have the capacity to exercise care for his own safety in the familiar and lesser dangers of his own yard." Minsk v. Pitaro, 284 Mass. 109, 113. We think the contributory negligence of the plaintiff presented a question of fact in accordance with our decisions where the conduct of a child of similar age was involved. Sullivan v. Boston Elevated Railway, 192 Mass. 37. Ayers v. Ratshesky, 213 Mass. 589.

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McCoy v. Boston Elevated Railway, 249 Mass. 12. Clark v. Martin, 261 Mass. 60. Brennan v. Boston Elevated Railway, 261 Mass. 318. Boni v. Goldstein, 276 Mass. 372. Capano v. Melchionno, 297 Mass. 1, 7.

Exceptions overruled.