238 Mass. 326 | Mass. | 1921
The question to be decided is whether an employee’s death — caused by the premature starting of a passenger elevator — occurred in the course of and arose out of the employment.
Nathan Latter was in the service of one Kondazian. His hours of labor commenced at eight in the forenoon, and the accident happened shortly before that time while he was on his way to work on the fifth floor of a building. The employer was in possession of that floor under a lease which contained no reference to the use of the elevator, which was maintained for the use of all the tenants and wás neither operated nor controlled by the employer. It did not open directly into the employer’s leasehold, communication being through a hallway. There was also a stairway by means of which access could be had to the employer’s factory. There was evidence that while both the elevator and stairway were used by those in the service of the employer, most of the employees used the elevator.
By clear implication and the obvious intent of the parties to the lease, as against the landlord, the employer and those in his service had a right to use the elevator for purposes properly connected with the occupancy of the premises leased, while it was maintained by the landlord. Brande v. Grace, 154 Mass. 210. Raynes v. Stevens, 219 Mass. 556. Miller v. FitzGerald Dry Goods Co. 62 Neb. 270. Shaft v. Carey, 107 Wis. 273. See also McCall v. New York Life Ins. Co. 201 Mass. 223.
The case is within the principle of Sundine’s Case, 218 Mass. 1, O’Brien's Case, 228 Mass. 380, O’Toole’s Case, 229 Mass. 165, 167, and Hallett’s Case, 232 Mass, 49. See White v. E. T. Slattery Co. 236 Mass. 28. It is distinguishable from Fumiciello’s Case, 219 Mass. 488, Rourke’s Case, 237 Mass. 360, and Bell’s Case, ante, 46, where injuries were received at places not connected with and not in legal effect a part of the premises where the employees were employed. We do not fix any exact line of demarcation, as each case must be decided on application of the governing principles to the facts involved.
Decree affirmed.