Doherty v. McLean , 171 Mass. 399 ( 1898 )

Allen, J.

The evidence would warrant a finding that the plaintiff was invited to come to the defendant’s shop to buy waste wood, and, after having paid the price of a basketful, to enter the bin for the purpose of taking the wood; and that, having paid the price on the day of the accident, she was properly in the bin with her brother for the purpose of filling her basket. The evidence also tended to show that while there her usual way of getting out was cut off by the act of one of the defendant’s workmen in placing boards across the bin, and thus covering the corner where there was a step or something which served for a step, which she was in the habit of using in getting into and out of the bin; and that therefore she took another way of getting out, and in doing this received the injury by placing her hand upon a revolving knife which projected about a sixteenth of an inch above the surface of a table standing near the bin. She testified that she thought this knife to be a still piece of iron, and there was aether testimony that when in rapid motion it might look as if it was at rest. Whether the course which she took to get out of the bin was inconsistent with due care on her part was a question for the jury. Being without assistance, advice, or caution, it cannot be held, as matter of law, that upon undisputed facts she was careless, or that the defendant was free from fault in allowing her under such circumstances to get out by a way which exposed her to injury.

Exceptions sustained,