277 Mass. 463 | Mass. | 1931
The defendant was in control of buildings numbered 97 Summer Street, 24 Kingston Street and 116 Bed-ford Street, in Boston, which, through the removal of inside walls, practically constituted and were used as one building. Tenants were served by passenger and freight elevators which were in the control of the defendant. One of the freight elevators opened through the wall of 116 Bedford Street upon a passageway running from Kingston Street. The opening was at the height of the tailboard of a truck above the level of the passageway. , An iron plate extended from the outer face of the wall to the elevator shaft. Witnesses varied in stating its width from one foot to four feet. The plaintiff’s intestate, Tally, in climbing up to this platform, placed his hands on the sides of the opening, put his right foot on the iron platform, caught his left foot in the uneven and broken edge of the iron which had become raised above the brick on which it was designed to rest, and fell into the elevator well, receiving injuries from which he died. After verdicts for the defendant upon counts for conscious suffering, and for the plaintiff upon counts for the death, the case is before us upon exceptions of the defendant to the refusal of the trial judge to direct verdicts in its favor, to his refusal to give certain requests for instructions, to rulings with regard to evidence and to improper argument. The declaration did not charge gross negligence nor wilful and wanton conduct; and no evidence of either appears.
In addition to what has been stated, there was evidence which would support findings that Tally, driver of a truck of the American Express Company, entered the alleyway from Kingston Street and parked his truck near the elevator opening in a usual place. He had parcels to deliver to five tenants at 116 Bedford Street and 24 Kingston Street. He alighted, walked to the elevator opening, found the gates
The serious question presented is whether the defendant owed any duty to the intestate other., than to refrain from gross negligence or wilful and wanton conduct producing injury to him. Since neither was charged or proved, the liability, if any, depended upon the existence of a duty owed to him to use ordinary care to keep the elevator and its approaches in the building reasonably safe and convenient for his use. Under our decisions no such duty was owed by the defendant if the intestate stood only in the position of a mere licensee upon the premises. Unless he was invited, expressly or impliedly, by the landlord to come upon the premises, or was there under a right of a tenant to his presence, he was in the position of a merb licensee. Pope v. Willow Garages, Inc. 274 Mass. 440. Murphy v. Huntley, 251 Mass. 555. Creeden v. Boston &
It is manifest that the use of the platform and elevator contemplated was use from the body of the vehicle conveying the freight to or from the elevator, and not from the alley level. No tenant was authorized to use the opening as a means of entrance to the building from the alley level. One so entering was as to the landlord at best simply a licensee, if he were not a trespasser. As was pointed out in Cerricola v. Darena, 266 Mass. 267, 269, and cases cited, see also Landers v. Brooks, 258 Mass. 1, any invitation to use was limited to use in the manner obviously indicated by the surroundings. No doubt a person on foot might lift a parcel destined for a tenant from the ground to the platform and push it over to the elevator. If injured in so doing by a defect in the platform due to lack of care in maintaining the platform in safe condition, he might have a remedy against the landlord. But one who used this opening for entrance to the building, even if intending thereby to get at the elevator, would not be within any invitation extended by the landlord. Compare Murphy v. Avery Chemical Co. 240 Mass. 150, 154, Murphy v. Boston & Maine Railroad, 248 Mass. 78, 81, Laporta v. New York Central Railroad, 224 Mass. 100. Upon the facts of this case the plaintiff was not one to whom the defendant owed a duty to keep the platform and elevator safe, either as one of the public or as one deriving a right under a tenant by written lease or a tenant at will. The covenants of the
It follows that there was error in denying the defendant’s motions for directed verdicts. What has been said renders unnecessary discussion of the other exceptions claimed. We find no reversible error. As the case has been fully tried, judgment for the defendant should enter pursuant to G. L. c. 231, § 122.
Exceptions sustained.
Judgment for the defendant.