276 Mass. 429 | Mass. | 1931
The intestates were killed by the falling of an elevator in a building owned and controlled by the defend"ant. Two suffered consciously. Actions were brought against the defendant and against an elevator company that had undertaken repairs upon the elevator which may not have been fully completed at the time of the accident. Counts at common law were joined with counts under G. L. c. 229, § 5, as amended by St. 1922, c. 439, and St. 1925, c. 346, § 9. In the action by Levesque the common law count was waived. Damages in $2,000 on the common counts were awarded against both defendants; but upon the statutory counts, in each action, the jury assessed $500 against the elevator company and $9,000 against the owner. The latter saved exceptions to the refusal of the trial judge to direct verdicts in its favor; to his refusal to give certain instructions requested; and to the exclusion of testimony offered. By a supplementary bill of exceptions it excepted to denial of its motions for new trials based upon a claim that the award of damages for culpability is excessive as matter of law, and a claim of improper argument by counsel for two of the plaintiffs.
Salient facts shown by uncontroverted evidence were as follows: The deceased men, employed by one Crouse as express teamsters, on June 26, 1928, went to the building of the defendant to deliver certain plates of lead to be used by the defendant in its business of publishing a newspaper. They opened a basement entrance by a key in the possession of one of them; got at an elevator used for freight and, at least, also for persons in charge of freight; and loaded twenty-seven plates of lead weighing about one thousand thirty pounds upon it; got upon it themselves, thereby adding about five hundred or six hundred pounds to its load; and started the hoist. At some point in the upward course, the car halted and then fell to the basement. When examined after the removal of the injured men, the hoisting cables were found to be wound upon the drum at the head of the elevator well, but with
The evidence with regard to what was said was controverted. The jury could find that the defendant ordered that new cables be put in and necessary work to remove play and to make the elevator safe be done; but that the defendant stated that it must be able to use the elevator
The injured men were invited to the premises in carrying on the defendant’s business. It owed to them the duty to use reasonable care to see that those premises were reasonably safe for the use contemplated. This duty it could not delegate. As was stated in Curtis v. Kiley, 153 Mass. 123, 126, “when the owner of premises which are under his control employs an independent contractor to do work upon them which from its nature is likely to render _the. premises dangerous to persons who may come upon them by the invitation of the owner, the ojvner is not relieved by reason of the contract from the obligation of seeing that due care is used to protect such persons. The owner cannot continue to hold out the invitation without being bound to exercise due care in keeping the premises reasonably safe for use according to the invitation.” This is established as law" in this Commonwealth by many cases, illustrated by Brackett v. Lubke, 4 Allen, 138, Mulchey v. Methodist Religious Society, 125 Mass. 487, 489, Stewart v. Putnam, 127 Mass. 403, Sturges v. Cambridge Theological Education Society, 130 Mass. 414, 415, Woodman v. Metropolitan Railroad, 149 Mass. 335, Thompson v. Lowell, Lawrence & Haverhill Street Railway, 170 Mass. 577, Boucher v. New York, New Haven & Hartford Railroad, 196 Mass. 355, Hall v. Henry Thayer & Co. 225 Mass. 151, 154, Nugent v. Boston Consolidated Gas Co. 238 Mass. 221, 232. It is law elsewhere: Besner v. Central Trust Co. of New York, 230 N. Y. 357, Scott v. University of Michigan Athletic Association, 152 Mich. 684, Lineaweaver v. Wanamaker, 299 Penn. St. 45. It is recognized in Pickett v. Waldorf System, Inc. 241 Mass. 569, where the distinction is shown between acts for which the independent contractor is liable alone, and those for which the owner of premises who has contracted with him remains liable also.
The defendant offered to show that one of the defendant’s employees after being told by the man in charge of the repairs for the Salem Elevator Works that the elevator was good for another fifteen years told the statement to Rogers, treasurer and general manager of the defendant. The evidence was excluded. We think the ruling was wrong. Such a statement if reported to Rogers would have a material bearing upon the culpability of the defendant. One who honestly but mistakenly believed the elevator to be safe would not be as blameworthy for failing to take precautions as he would be if he had no such belief. Rogers might well trust the report of the statement (which seems in the nature of a communication intended
The exceptions in connection with the motions for new trials must be overruled. No good exception lies to any ruling on a motion for new trial that could have been made at the trial. If the defendant wished to raise the question of propriety of argument it should have called attention to it at the trial, and have asked appropriate action there. It did not. Now it is too late. Commonwealth v. Cabot, 241 Mass. 131, 151. We cannot say, as matter of law, that the damages measured by culpability were excessive. The trial judge has refused to reduce them. He, like the jury, saw and heard the witnesses, but without the testimony which we have here held to be admissible. The amounts seem to us extraordinary. They indicate that the value of the lives tó the deceased men and their dependents rather than the quantum of blame attaching to the defendant has been the measure applied. We are not in position, however, to find abuse of discretion in denying the motions on this ground. No, exception was taken to the charge in this regard.
Exceptions sustained.