Dickie v. Davis

217 Mass. 25 | Mass. | 1914

Braley, J.

The presiding judge upon the facts stated in the opening for the plaintiff ruled that, if proved, the action could not be maintained against either of the defendants, and, having ordered a verdict, reported the case to this court.

The defendant Davis and the defendants Greenleaf and Knight ' are respectively the owner and lessees of the hotel property, and it is unquestioned that the lessees were in possession and control when they made the contract with the plaintiff’s employer for the construction of a sun parlor on the roof. The penthouse where the plaintiff was injured had not been designated or appropriated for the use of guests or other persons lawfully on the premises, and, there being no evidence as in Learoyd v. Godfrey, 138 Mass. 315, and Dalay v. Savage, 145 Mass. 38, that when let it was in a dangerous condition,either from defective construction or from neglect, the plaintiff has no cause of action against her, even if she consented to the addition. Quinn v. Crimmings, 171 Mass. 255, 256. Coman v. Alles, 198 Mass. 99, 103.

We shall now refer to the lessees as the defendants.

The jury properly could find, that the workmen of the contractor, in going to and from the work, and while in its performanee, were upon the premises by the invitation and for the benefit of the defendants, with the right to have the premises kept in a reasonably safe condition. Wright v. Perry, 188 Mass. 268. Plummer v. Dill, 156 Mass. 426. “The gist of the liability consists in the fact that the person injured did not act merely for his own convenience and pleasure, and from motives to which no act or sign of the owner or occupant contributed, but that he entered the premises because he was led to believe that they were intended to be used by visitors or passengers, and that such use not only was acquiesced in by the owner or person in possession and control of the premises, but that it was in accordance with the intention and design with which the way or place was adapted and prepared or allowed to be used. The true distinction is this: A mere passive acquiescence by an owner or occupier in a certain use of his land by others involves no liability, but if he directly or by implication induces persons to enter on and pass over his premises, he thereby assumes an obligation that they are in a safe condition, suitable for such use.” Sweeny v. Old Colony & Newport Railroad, 10 Allen, 368, 373, 374.

But the defendants’ obligation did not extend to the entire premises. It embraced only those portions necessary for the performance of the work, and for access thereto. Walker v. Winstanley, 155 Mass. 301. Cowen v. Kirby, 180 Mass. 504. The jury could have found that with the knowledge and assent of the defendants the penthouse had been used for the purpose of housing tools and materials as the work progressed, while the men also used it to store clothing and as a convenient place for their lunches. The plaintiff, having stopped work at noon, entered the house through a window opening from the side on to the roof, and, in stepping over the disused elevator well to reach his lunch, rested one foot on the wooden grating of the well, when it gave way, causing him to fall through the opening to the floor six stories below. But the defendants had not engaged to provide a place where he could lunch, neither was he invited to use the penthouse for this purpose. The grating] was not designed as a footing if he wished to pass by way of the interior from one side of the house to the other, nor did the defendants by their permission undertake the duty to warn him of possible defects or dangers, or to maintain the enclosure in any different condition. McCoy v. Walsh, 186 Mass. 369. It being certain that at the time of the accident the plaintiff was a licensee who took the premises as he found them, no breach of any duty toward him is shown, and in accordance with the terms of the report the entry must be judgment on the verdict. Baker v. Tibbetts, 162 Mass. 468. Moffatt v. Kenny, 174 Mass. 311, 315, 316.

So ordered.