294 Mass. 412 | Mass. | 1936
This is an action of contract in which the plaintiff seeks to be indemnified, under a policy of insurance issued by the defendant, for loss sustained by him by reason of personal injuries received by Nora E. Cook while on the sidewalk adjacent to his premises. The plaintiff, believing he was liable, paid damages, together with expenses he had incurred, which were necessitated by the
The case was tried in the Superior Court. At the conclusion of the evidence the defendant presented a motion for a directed verdict in its favor upon the grounds that upon the pleadings and the evidence the plaintiff as matter of law was not entitled to recover. It was stipulated that if the defendant as matter of law was liable to the plaintiff, a verdict should be entered for the plaintiff in the sum of $7,312. The judge allowed the defendant’s motion and directed the jury to return a verdict for the defendant, to which order, allowance of motion and direction the plaintiff excepted.
It is recited in the bill of exceptions that at the trial it was agreed by the parties as follows: that in the years 1923 and 1924 the plaintiff was the proprietor and lessee of the store numbered 228 Boylston Street, in Boston, extending through to Providence Street; that “on January 2nd, 1924 a ‘public indemnity’ policy was issued to the plaintiff and no question is raised as to its issuance, delivery, or payment of premium therefor, and that the policy was in force at the time of the accident. That on August 27, 1924, one Nora E. Cook was injured while walking on the sidewalk on Providence St., immediately adjacent to the plaintiff’s premises. That the accident occurred when a sidewalk elevator or hoist which formed part of the sidewalk was raised from below, underneath her and she was thrown and
The plaintiff testified that he was not in his store when the accident occurred, but that when he returned he was notified by his daughter that a woman had been hurt on the sidewalk; that he instructed his daughter to notify the insurance company, and later he received a summons and sent it to the company; that the company refused to appear for him, and he employed counsel to defend him; that during the trial he paid $5,000 to Nora Cook’s attorney in settlement of her action against him, and $850 to attorneys who appeared for him. He further testified that the elevator was four feet square, that the top of it formed a part of the sidewalk, and that it was used by the janitor of the building, delivery men, and by other tenants of the building.
Nora MacDonald, called by the defendant, testified that her name formerly was Nora Cook; that she was the person involved in the accident; that at that time she did not see the elevator; that she was walking along the sidewalk “and did not know it was there until it rose up through the sidewalk underneath her and she was thrown and hurt.”
The first paragraph of the policy issued to the plaintiff is as follows: “A. To indemnify the herein named Assured against loss from the liability imposed by law upon the Assured for damages on account of bodily injuries, including death resulting therefrom, accidentally suffered, or alleged to have been suffered, within the policy period by any person or persons not employed by the Assured, while within or upon the premises described in. the Schedule or upon the sidewalk or other ways immediately adjacent thereto.” This provision would cover ordinary accidents on the sidewalk adjacent to the premises described in the
' The entry must be
Exceptions overruled.