Fielding v. S. Z. Poli Realty Co.

274 Mass. 20 | Mass. | 1931

Wait, J.

These are two actions, one for damage to an automobile and one for personal injuries, which arose out of the following happenings. The plaintiff Chisholm was a passenger with three others in a car owned by the plaintiff Fielding, which was driven by her son to Springfield and parked in an open space at the corner of Broadway and Pynchon streets. The driver, as he went along Pynchon Street, saw a sign which read: “ Parking 25c.” He turned to his left into the space through an opening and parked his car parallel with Pynchon Street and about forty feet from it beside another automobile which stood nearer Pynchon Street. There were five or six other cars in the space. It was about dusk, around eight o’clock in the evening of July 5. None of the party then noticed an empty cellar hole, twenty feet wide, seven or eight feet deep and fifty feet long, which began about ten feet back from the street. The car was parked approximately forty or fifty feet away from this hole, about two feet from an iron fence which separated the lot used for parking from the lot on which the Forbes & Wallace store was standing. The space used for parking was owned by the defendant. The charge for parking was taken ordinarily by one Shines who turned it over to a representative of the defendant. There is nothing to show that anything had been done to the land to fit it for parking purposes, or that any care of the vehicles left on it was assumed by the person who ordinarily collected the parking charge. The evidence was conflicting whether any barrier or guard existed, on the night in question, between the cellar hole and the parking space. For the purposes of this decision we must assume that there was no barrier, and no lights or other warning maintained there. Shea v. American Hide & Leather Co. 221 Mass. 282, 283. The occupants of the car were unable to find any one in charge, and made no payment for parking at any time. They returned about ten-thirty o’clock and got into the car. Fielding, the driver, turned on the switch, stepped on the starter, found the battery dead and got out. He cranked the car, which immediately started backward. He jumped to the running board, and tried to take the car out of gear and to head it toward Pynchon Street. It moved some sixty feet; the right rear, followed by the right front, wheel went over the edge, and the car fell into the cellar hole. The plaintiff Chisholm, who had been on the front seat, fell under the car.

The defendant can be held liable only if it failed in performing a duty which it owed to the plaintiffs, and this failure contributed to cause their injuries. See Currier v. Whitin Machine Works, 258 Mass. 82; Tompkins v. Quaker Oats Co. 239 Mass. 147, 149. A jury would be justified in finding that an invitation to park was extended to the owner of the car and to those in it; and that a duty was imposed on the defendant to use reasonable care to see that the space was reasonably safe for the invited use. The duty, however, must be limited to the invitation. Plummer v. Dill, 156 Mass. 426. There was no undertaking to insure the safety of car or passengers. Had the car, while momentarily out of control, backed into another vehicle in the parking space, then, even though serious injury resulted, no one, we think, would fix • blame upon the defendant, yet it would have contributed, in a sense, through its invitation to the second car to park where it had been. The cause here was that the car got out of control. For this the defendant was in no way responsible. No act or omission of its own or of its servants brought it about or contributed to it. The presence of the cellar hole, whether guarded or not, was merely a condition of the injury, not a contribution to its cause. It may well be doubted whether a light or a guard would have made any difference in the result. There is no evidence to show that warning, light, or barrier such as any reasonable man would have set up, would have affected the result. The law did not place any duty which has been violated on the defendant in the circumstances here disclosed. The invitation did not go beyond permission to come upon the land and to leave a car in the space as it stood. There was no undertaking to make it different so that possible risks of injury might be removed.

In accord with the stipulation embodied in the report the entry must be, in both cases,

Judgment for the defendant.