
    Thomas J. Reynolds vs. Sebastian Garst.
    PROVIDENCE
    APRIL 1, 1903.
    Present: Stiness, C. J., Tillinghast and Douglas, JJ.
    (1) Negligence. Independent Contractor.
    
    An opening was made in the sidewalk, opposite defendant’s land and building, for the purpose of setting up machinery in the building. The setting up of the machinery was done by a contractor. Plaintiff, a boy about four years of age, fell into the opening and was injured:—
    
      Held, that prima facie the duty to guard the opening was that of the owner, who was likewise the occupant. The burden, therefore, of showing that some other party was using, the opening and had the care of it was upon defendant.
    Trespass on the Case for negligence.
    Heard on petition of defendant for new trial, and petition denied.
   Per Curiam.

This case was brought to recover for damages suffered by the plaintiff, a boy of about four years of age, from falling into an opening in the sidewalk opposite the defendant’s land and building. The opening was made by removing' a section of the walk, under which the cellar extended, for the purpose of carrying into the cellar materials to be used in setting machinery in the building. The setting up of this machinery was done by a contractor, and the principal ground of defence was that at the time of the accident the duty of guarding the opening devolved upon the contractor and not upon the owner of the building. Prima jade the duty to guard the opening was that of the owner, who was likewise the occupant of the building. The burden, therefore, of showing that at the time in question some other party was using the opening and had the care of it is upon the defendant.

We do not think that he has shown that such was the fact. His own testimony seems to be that the contractor had finished using the opening. The jury were justified in finding that the opening unguarded was dangerous, and that the plaintiff was not guilty of contributory negligence in the premises; hence their verdict should not be disturbed.

Page & Page & Cushing, for plaintiff.

Tillinghast & Murdock, for defendant.

New trial denied.  