295 Mass. 344 | Mass. | 1936
This is an action of tort to recover compensation for personal injuries alleged to have been sustained by the plaintiff in falling from a fire escape attached to a building occupied by the defendant. The bill of exceptions states that the “declaration is in two counts, both alleging that the plaintiff was lawfully on the premises in the per
There was no prejudicial error.
The direction of a verdict for the defendant, if right under the pleadings, cannot be reversed since it must be taken that the judge acted with the declaration before him and in view of its averments. Brasslavsky v. Boston Elevated Railway, 250 Mass. 403, 404. Auburn State Bank v. National Laundry Co. 289 Mass. 397, 398. The first count of the declaration, at least, is based on negligence. The plaintiff contends, however, that the second count is based on a violation of G. L. (Ter. Ed.) c. 143, § 21. The declaration clearly does not allege wilful, wanton or reckless conduct on the part of the defendant.
1. The evidence did not warrant a verdict for the plaintiff on the ground of negligence. There was evidence that
Apart from any statute, the plaintiff, entering upon the premises in question as a licensee, cannot recover on the ground of negligence but must show wilful, wanton or reckless conduct. O’Brien v. Union Freight Railroad, 209 Mass. 449, 452. Murphy v. Boston & Maine Railroad, 248 Mass. 78, 82. Partridge v. United Elastic Corp. 288 Mass. 138, 144. The plaintiff contends, however, that the evidence warranted a finding that the defendant violated G. L. (Ter. Ed.) c. 143, § 21, and that such violation was evidence of negligence. This section provides in part that “any building in which ten or more persons are employed in a . . . mercantile . . . establishment . . . shall be provided with proper egresses or other means of escape from fire sufficient for the use of all persons accommodated, assembled, employed, lodged or resident therein,” and that the “egresses and means of escape shall be kept unobstructed, in good repair and ready for use.” G. L. (Ter. Ed.) c. 143, § 53, provides a criminal penalty for violation of this section. And G. L. (Ter. Ed.) c. 143, § 51, provides that a person who “owns ... or controls the use” of a building mentioned in § 21 “shall be liable to any person injured for all damages caused by a violation” of the provision of that section. But this contention of the plaintiff, if sound, would not warrant a verdict for him on the ground of negligence. The statute does not transform a licensee into an invited person or create a liability for negligence where, as here, no such liability exists apart from the statute. Palmigiani v. D’Argenio, 234 Mass. 434. Garland v. Stetson, 292 Mass. 95, 103. Wynn v. Sullivan, 294 Mass. 562, 565-566. Parker v. Barnard, 135 Mass. 116, so far as inconsistent with this conclusion, must be regarded as overruled by these cases. If the plaintiff has any cause of action by force
2. The plaintiff cannot recover on the ground of wilful, wanton or reckless conduct on the part of the defendant. Such conduct is different in kind from negligence and must be alleged. Kilduff v. Boston Elevated Railway, 247 Mass. 453, 456. Wilful, wanton or reckless conduct, however, is not alleged and the plaintiff properly does not contend that it could have been found on the evidence.
3. The evidence did not warrant a verdict for the plaintiff on the ground of a violation by the defendant of G. L. (Ter. Ed.) c. 143, § 21, independent of negligence. It may be doubted whether the declaration alleges such a violation, but, even apart from any question of pleading, on this branch of the case the direction of a verdict was right. The civil remedy provided by G. L. (Ter. Ed.) c. 143, § 51, for damages caused by a violation of § 21 is given only to persons intended to be benefited by the provisions of said § 21. This is true not only of the requirement of § 21 that a building “be provided with proper egresses or other means of escape from fire sufficient for the use of all persons accommodated, assembled, employed, lodged or resident therein,” but also of the requirement that the “egresses and means of escape shall be kept ... in good repair and ready for use.” These provisions must be interpreted broadly so as to give full effect to the purpose of the statute. But the duty and liability of a person owning or controlling the use of a building with respect to a fire escape attached thereto, when such fire escape is used for other purposes, remain as at common law. Landers v. Brooks, 258 Mass. 1, 3. Rice v. Rosenberg, 266 Mass. 520, 523. And the evidence in this case did not warrant a finding that the plaintiff was using the fire escape for the statutory purpose. According to the evidence most favorable to him he was using the fire escape as a vantage point from which to fight a fire in a near-by building and not as an egress or means of escape from fire — the purpose for which fire escapes are required by this statute. His use of the fire escape was
4. The ruling of the trial judge on which the verdict for the defendant was directed was sufficiently favorable to the plaintiff. See, however, Reardon v. Thompson, 149 Mass. 267, 268; Redigan v. Boston & Maine Railroad, 155 Mass. 44, 47; O’Brien v. Union Freight Railroad, 209 Mass. 449, 452; Partridge v. United Elastic Corp. 288 Mass. 138, 144.
Exceptions overruled.