328 Mass. 110

September 18, 1951 - November 27, 1951

Berkshire County


Evidence of the circumstances in which, after a defendant hired to install siding on the plaintiff's house had brought pump jacks and other equipment to the premises and had worked there for several days, the plaintiff tripped and fell in the dark over the handle of a pump jack protruding over a walk leading to her garbage pail, together with evidence that after the accident the defendant said that it "was really his fault, that he should never have left the jack in that position," warranted a finding of negligence on the defendant's part and did not require a ruling that the plaintiff was guilty of contributory negligence.

TORT. Writ in the Superior Court dated September 17, 1948. The action was tried before Broadhurst, J. F. M. Myers, Jr., (F. M. Myers with him,) for the defendant. J. N. Alberti, (M. Freedman with him,) for the plaintiffs.

SPALDING, J. In this action of tort verdicts were returned for the plaintiffs. [Note 1] The case comes here on the defendant's exception to the denial of his motion for a directed verdict. The female plaintiff will hereinafter be referred to as the plaintiff.

The following is a summary of the evidence most favorable to the plaintiffs: The plaintiffs, husband and wife, entered into a contract with the defendant to install siding on a house owned and lived in by them. The defendant commenced work under the contract on October 16, 1947. To perform this work he brought to the plaintiffs' premises

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certain equipment consisting of planks, a ladder, and four pump jacks. The pump jacks were attached to four by four planks about twenty feet in length. This equipment was placed on the edge of a slope at the rear or easterly side of the house at a point south of a dirt walk which ran from the rear of the house to a garbage pail. "The position and amount of equipment . . . [were] being changed daily by the defendant." The defendant worked on the premises for the three day period commencing on October 16 and ending at 6 P.M. on October 18, which was a Saturday. "During the time the defendant was carrying on said work, the plaintiffs knew where the articles of equipment . . . were being left, but did not know the manner in which same was deposited, and made no complaint to the defendant as to where said articles were being left." During October 16, 17, and 18 the defendant's equipment was "entirely off the walk."

On Sunday, October 19, about 7 P.M. the plaintiff went out of the house for the purpose of depositing some garbage in the garbage pail. In doing so she descended some steps on the rear porch which was "lighted only by a small electric light." "It was dark to the rear of the steps and along . . . [the] dirt walk leading to the garbage pail." The plaintiff reached the dirt walk and, after proceeding two or three steps, tripped over the handle of a pump jack and fell. The handle of the jack was about two and one half feet long and protruded over the dirt walk upon which the plaintiff was walking. It did not appear that the defendant had been on the plaintiffs' premises between the time when he had stopped work on October 18 and the time of the accident.

After the accident, the defendant said to the plaintiffs that "It was really his fault, that he should never have left the jack in that position." "He said he was sorry, that he didn't want to put his jack over the bank because he was afraid it might be broken, so he left it that way, but he said he never should have done it." It appeared that " in the level space [beyond the garbage pail] there was plenty of

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room for planks . . . and all the other equipment which . . . [the plaintiffs] had seen there."

We are of opinion that on the foregoing evidence the plaintiffs were entitled to go to the jury. The jury could have found that the defendant ought to have foreseen that occupants of the plaintiffs' household would use the dirt walk and that a pump jack left so that its handle protruded into the walk would constitute a source of danger. O'Neil v. National Oil Co. 231 Mass. 20, 26.

It is true that the defendant left the premises at 6 P.M. on the preceding day and that there is no direct evidence that at that time the handle of the jack protruded into the walk. It is of course possible, as the defendant argues, that this condition could have been created by persons for whose conduct the defendant was not responsible. But the plaintiffs were required only to show that there was a greater likelihood that the defendant's negligence caused their injuries; they were not obliged to exclude every other possibility. Bigwood v. Boston & Northern Street Railway, 209 Mass. 345, 348. Rocha v. Alber, 302 Mass. 155,157-158. In view of the comparatively short period (twenty-five hours) that elapsed between the time that the defendant left the premises and the accident and his admissions that it was his fault and that "he should never have left the jack in that position," the jury would have been warranted in finding that he was responsible for its location at the time of the accident.

It cannot be said as matter of law that the plaintiff was contributorily negligent.

Exceptions overruled.


[Note 1] The declaration contained two counts. In the first count the female plaintiff sought compensation for personal injuries and in the second count her husband sought consequential damages.