248 Mass. 78 | Mass. | 1924
This action is to recover damages for the death and conscious suffering of the plaintiff’s intestate, who was run over by a car of the defendant in the coal yard of the Darrow-Mann Company. The action is brought by the Aetna Life Insurance Company, Agnes C. Murphy having been paid compensation under the workmen’s compensation act as a dependent of the intestate.
The deceased was employed by the Leahy-Rattigan Construction Company, as a carpenter. This company was building a transformer station and office building in the yard of the Darrow-Mann Company, and was doing the planking and cap logging on a wharf on the premises, under a contract with the Darrow-Mann Company. On April 6, 1916, the defendant was operating its cars in the yard of the Darrow-Mann Company, under a contract with this com-
On April 6, the day of the accident, the intestate was working with other employees of the Leahy-Rattigan Construction Company on the wharf on the westerly side of the tracks; he walked up the yard to a point opposite the hydrant and crossed the tracks, which were two or three feet higher than the coal field, to get a drink of water; while returning, in crossing the track, he was struck by a car operated by the defendant. The office building which the Leahy-Rattigan company was constructing for the Darrow-Mann Com-pony was on the easterly side of the railroad tracks, at least six hundred feet from the hydrant. Murphy had done some work on this building but had been employed at the wharf for a week or more before the accident, and on that day “ only finishing up work such as putting in the chair rail and adjusting doors was being done upon the office building.” The transformer station and locker building for wearing apparel and tools adjoined the transformer station on the westerly side of the tracks. There was no way from the locker and transformer building to the hydrant except by crossing the tracks.
The plaintiff’s intestate was working on the premises of the Darrow-Mann Company; his employer, the Leahy-Rattigan Construction Company, under its contract was to do certain work on the Darrow-Mann Company’s premises;
Knowledge of such use does not amount to an invitation; the mere passive acquiescence in the use to which this portion of the premises was put was not equivalent to an inducement or invitation to use them in this way. Sweeny v. Old Colony & Newport Railroad, 10 Allen, 368. Wheelwright v. Boston & Albany Railroad, 135 Mass. 225. Youngerman v. New York, New Haven & Hartford Railroad, 223 Mass. 29. Laporta v. New York Central Railroad, 224 Mass. 100. Doherty v. New York, New Haven & Hartford Railroad, 229 Mass. 135.
The deceased was not required to cross the tracks. In going to the hydrant for his own purposes he was not an invitee but was a licensee of the Darrow-Mann Company. Severy v. Nickerson, 120 Mass. 306. Laporta v. New York Central Railroad, supra. Carey v. Gray, 98 N. J. L. 217.
In Carpenter v. Sinclair Refining Co. 237 Mass. 230, it could have been found that the plaintiff was invited to use the rheostat in the performance of his work and that he was “ not a volunteer or intermeddler.” In Crimmins v. Booth, 202 Mass. 17, the plaintiff when injured was at work on one of the hatches of a vessel in the course of his employment. Boyle v. Columbian Fire Proofing Co. 182 Mass. 93, is not in conflict. In that case the plaintiffs were employees of the defendant and going from the eighth floor of the building, which they were engaged in erecting, to eat dinner when the accident occurred; this was held to be an incident of the workmen’s employment. In Olsen v. Andrews, 168 Mass. 261, the plaintiff was injured by the negligence of
The defendant in the discharge of its contract with the Darrow-Mann Company had the right to use the tracks on the premises of the Darrow-Mann Company. The defendant’s duty to the plaintiff’s intestate was no greater than the duty owed to him by the Darrow-Mann Company. He was not invited by the defendant to use the premises, and he stood toward the defendant as a licensee. The case is governed by Cole v. L. D. Willcutt & Sons Co. 214 Mass. 453. The plaintiff in that case was not in the employ of the defendant, but was employed by another contractor on the building. The defendant was engaged in constructing a stairway, which the employees of the other contractor sometimes used during its erection and at times used t'he elevator. It was held that the defendant’s passive acquiescence in the use of the stairway gave the plaintiff as against the defendant only the rights of a licensee. Blackstone v. Chelmsford Foundry Co. 170 Mass. 321.
The duty of the defendant toward the plaintiff’s intestate as a licensee was to refrain from wilful, wanton or reckless conduct and there was no evidence of such conduct. Robbins v. Athol Gas & Electric Co. 236 Mass. 387. Hafey v. Turners Falls Power & Electric Co. 240 Mass. 155. This duty applies not only to the care and maintenance of permanent structures but to the work done on the premises by the owner or the contractor. Neither the owner nor the contractor is liable for mere negligence to a licensee in the performance of work upon the premises; and unless there is evidence of wilful or wanton conduct the injured licensee cannot recover. Jones v. New York, New Haven & Hartford Railroad, 211 Mass. 521. Robbins v. Athol Gas & Electric Co. supra. Murphy v. Avery Chemical Co. 240 Mass. 150. Hafey v. Turners Falls Power & Electric Co. supra.
O’Neil v. National Oil Co. 231 Mass. 20, and Boutlier v. Malden, 226 Mass. 479, are to be distinguished. In O’Neil v. National Oil Co. the plaintiff was upon the premises
The defendant’s motion for a directed verdict should have been allowed.
Exceptions sustained.
Judgment to be entered for the defendant.