OWENS v. HARVARD BREWING CO

Negligence. In an action against a brewing company for personal injuries from falling into an opening in the sidewalk of a city street from which the servants of the defendant had removed a bulkhead in order to deliver beer in the cellar of a hotel, if there is conflicting evidence as to whether the defendant's servants placed barrels on each side of the opening to prevent travellers on the street from falling into it or whether they left the opening unguarded, the question of the defendant's negligence is for the jury.

In an action by a letter carrier against a brewing company for personal injuries from falling into an opening in the sidewalk of a city street from which the servants of the defendant had removed a bulkhead in order to deliver beer in the cellar of a hotel, if there is evidence that the plaintiff had delivered letters on this route for a number of years and had seen the bulkhead open about once a month during that time, that just previous to the accident he had delivered letters in the building next door to the hotel and had come out with a bundle of letters in his left hand at which he was looking when he walked into the opening, which extended about half way across the sidewalk, the question of the plaintiff's due care is for the jury.

MORTON, J.

The evidence was conflicting whether barrels were placed on each side of the opening left by the removal of the bulkhead to prevent any one from falling into it, and the question was plainly one for the jury. So also we think was the question of the plaintiff's due care. He had some right at least to assume that bulkheads would not be left open in the sidewalk without being suitably guarded, and knowledge of the existence of the bulkhead did not necessarily convict him of heedlessness. It was for the jury, taking into account all of the circumstances, the time of day, his knowledge of the locality, the nature of his occupation and such other matters, if any, as were entitled to consideration, to say whether he acted as a man of reasonable prudence would have done under like circumstances. Woods v. Boston, 121 Mass. 337. Fuller v. Hyde Park, 162 Mass. 51. Lamb v. Worcester, 177 Mass. 82. We see no error in refusing the ruling that was requested.

Exceptions overruled.