301 Mass. 324 | Mass. | 1938
This is an action of tort brought by the plaintiff, who resided at the defendant's hotel, to recover damages on account of being severely burned by hot water and steam precipitated upon her by a shower bath which, she alleged, had become defective through the negligence of the defendant. The shower was furnished and maintained by the defendant for the use and convenience of those staying at the hotel. The plaintiff excepted to the direction of a verdict for the defendant and to the exclusion of evidence.
There was evidence tending to show these facts: The defendant in 1917 became the owner of certain real estate, a portion of which was used as a hotel. In 1928, the defendant took over the hotel business and has since conducted and maintained such business. The plaintiff had lived in this hotel for about two years prior to her accident, which occurred on October 16, 1933. She at first had occupied a room upon the third floor; but when, in 1932, the defendant arranged for the exclusive occupancy of the fourth floor by women, she was assigned a room upon this floor, which she occupied at the time of the accident. The defendant had provided a shower room containing three individual shower booths and three dressing rooms. In each booth was a shower equipped with a mixing valve, which was operated by turning the handle toward the right from the closed position on the left until a sufficient amount of water at the desired temperature was obtained.
The defendant was bound to exercise reasonable care to maintain this mixing valve in a safe and suitable condition for use by the plaintiff. Bechtold v. Rae, 231 Mass. 151. Kitchen v. Women’s City Club of Boston, 267 Mass. 229, 231. Promisel v. Hotels Statler Corp. 286 Mass. 15. The valve was not working properly when the plaintiff first used it before the accident. The defendant’s records showed that no new showers had been installed and no repairs had been made upon any of the shower equipment on the fourth floor of the hotel since the defendant became the owner in 1917. The bill of exceptions does not disclose that the valve was introduced in evidence or that the defendant offered any explanation of the accident. The defendant not only owned and maintained this mixing valve but it controlled the flow and the temperature of the water which it furnished to the showers. A shower that would emit steam and a heavy flow of boiling water, when its handle was set for water at a safe temperature, could be found to be a dan
It could not be ruled as matter of law that the defendant had sustained the burden of showing that the plaintiff was guilty of contributory negligence. It was for the jury to say whether she knew and appreciated the danger in attempting to shut off the water. Cahill v. New England Telephone & Telegraph Co. 193 Mass. 415, and cases cited.
The plaintiff offered to prove a conversation on the day after the accident between one Squires, the manager of the hotel and in charge of repairs, and one Scheufler, whose duty it was to see that all the defendant’s real estate was kept in good and safe repair. Scheufler suggested to Squires that he had “better send a plumber up to look at that valve” and Squires replied, in effect, that it was no “sense of sending a plumber up to look at it, we have had plumbers up there all the time and . . . [the valves] are always out of order.” Even though both men could be found to be in charge of making repairs upon the defendant’s property, neither was shown to be authorized to bind his principal by an admission made subsequently to the accident. Gilmore v. Mittineague Paper Co. 169 Mass. 471. McKenna v. Gould Wire Cord Co. 197 Mass. 406. Boston Food Products Co. v. Wilson & Co. 245 Mass. 550, 561. Cleary v. First National Stores Inc. 291 Mass. 172. Am. Law Inst. Restatement: Agency, §§ 287, 288.
Exceptions sustained.