285 Mass. 328 | Mass. | 1934
One who, uninvited but not forbidden, enters upon the premises of another in the hope of doing business for his own benefit with that other is, in law, at best, a bare licensee. He must take the place as he finds it. The other owes him no duty to have the premises reasonably safe for use by him. If, unfortunately, the one who enters is injured in consequence of a careless failure to have the premises safe for the use he makes of them, he has no redress by action at law for negligence. Plummer v. Dill, 156 Mass. 426. Alessi v. Fitzgerald, 217 Mass. 576. Ansara v. Skaff, 259 Mass. 197. Barton v. Republican Co. 277 Mass. 299. If, after entering, he engages in business with the other in which the other is interested, a duty toward him arises — the duty to keep the premises reasonably safe for the purpose to which they are put or to warn of danger. If because of negligent failure to perform the duty the one who enters is injured without contributing carelessness of his own, he has a cause of action for negligence. Statkunas v. L. Promboim & Son Inc. 274 Mass. 515, 519. Coulombe v. Horne Coal Co. 275 Mass. 226. In the matter before us the defendant contends that the case ends with the first proposition; while the plaintiff argues that the second states the applicable rule of law.
At the trial there was evidence as follows: The plaintiff shortly before his accident had gone back to the business of buying and selling empty barrels, after three years devoted to something else. He had dealt in barrels with the de
The entry by the plaintiff was uninvited. His position until the appearance of Charlie, manifestly, was that of a bare licensee. Unless Charlie had authority to do business with him, there is no evidence of anything which later gave the plaintiff the standing of an invitee. Whether Charlie had such authority was matter of fact. Unquestionably there was evidence that he had authority to direct the plaintiff to go to the office; but it was for the plaintiff to show whether, in truth, he was the defendant’s employee in charge of dealings in empty barrels, authorized to leave his work in making putty in order to lead the plaintiff to the oflfice or to exhibit barrels stored in the four-story brick warehouse. There is no evidence on these latter points except inference from the conduct and statement of the man in the doorway and of Charlie. There is nothing but speculation with regard to the standing of the man in the doorway. We think the plaintiff failed to introduce evidence which will support a finding that any one with authority from his employer so dealt with the plaintiff as to render him an invitee. Broitman v. Silver, 270 Mass. 24.
With regard to contributory negligence, although an affirmative defence, upon which only in exceptional circumstances can a verdict for the defendant be directed, we think that upon the plaintiff’s own description of his conduct in the darkness which he says enveloped him, it is demonstrated that the plaintiff contributed to his injury by his own carelessness. We have pointed out in Benton v. Watson, 231 Mass. 582, that even an invitee is not in the exercise of due care in moving about in darkness in an unfamiliar building. The plaintiff’s testimony will not
Although the questions are close, we think the judge was right, and that the entry should be
Exception overruled.
Judgment for defendants.