McClain v. Caribou National Bank , 100 Me. 437 ( 1905 )

Strout, J.

In 1903 defendant erected a building in Caribou on the corner of Washburn Avenue and Vaughan Avenue. October 24, 1903, the walls were up and roofed in, but the structure was not ready for occupation. It was the plan to' have on three sides of the building a concrete walk about eight feet wide. On the east side on Vaughan Avenue the walk had been completed, and also on the north side; but on the south side, facing Washburn Avenue, a curb had been put in upon defendant’s land adjoining the Avenue and dirt filled in between that and the building,' up to within about four inches of the top of the curbing, — that space being left for the concrete that was to be filled in later. About seventeen feet from the southeast corner of the building on Washburn Avenue in this walk was a roll-way to the cellar of the building about twelve feet long, five feet wide and five or six feet deep.

On the night of October 24th, or early morning of the 25th, plaintiff, while going to a fire, fell into this roll way which was uncovered and without protection of any kind, and was injured,'and this suit is to recover damages for that injury. Plaintiff had a verdict and the case is here upon motion to set the verdict aside, and on exceptions.

The walk on Washburn Avenue was not only in the unfinished condition above stated, but at the southeast corner next to, Vaughan Avenue, three or four hundred bricks were piled upon it next to the building, on the curb 'was a pile of lumber about two feet high, in two tiers,' and between them some barrels, which left only a space of about two feet to pass from Vaughan Avenue on to the walk. The lumber was some twenty feet long and extended to the rollway but did not cover it. At the westerly end of the walk there were a large number of barrels and carpenters’ horses and other debris, which nearly or quite prevented access to the walk at that end. These obstructions practically prevented entrance upon the walk from Vaughan Avenue or at the other end. They were a plain indication to the public that the walk on Washburn Avenue was not opened for travel and negatived any implied invitation of defendant for travelers to enter upon it. In going upon it that night, the plaintiff, while perhaps not a trespasser, was at most a mere lieensee, to whom the defendant owed no duty except not to wantonly injure her. The principles announced by this court in Dixon v. Swift, 98 Maine, 207 and Parker v. Portland Publishing Co., 69 Maine, 176, apply to this case.

Upon the question of due care of plaintiff, it is difficult to perceive its exercise by her. She says it was dark, and she did not see the rollway, but diagonally across Washburn Avenue and within the distance of less than three hundred feet the Lyndon Hotel was on fire, the flames coming from the roof, and in the opposite direction and one hundred and forty-seven feet distant a street electric light was burning, which it would seem must have given sufficient light to any attentive person to see the rollway. Several witnesses say they could see without difficulty. It is probable that the plaintiff was under excitement from the fire, and her eyes and attention were upon the burning building and no heed taken of her steps. Apparently she could not have entered upon the walk from Vaughan Avenue, but from Washburn Avenue somewhere between the termini of the walk, and not in the line of travel proposed when the walk was completed, perhaps to obtain a better view of the fire, or be away from passers upon the street and the operations of the fire department, rather than to travel upon the walk.

Upon the two grounds, that the defendant had not thrown open that walk to the public and thereby impliedly invited the public to use it, and that the plaintiff was guilty of contributory negligence, this verdict ought not to stand.'

Motion sustained; verdict set aside.