This is an action of tort in which Joseph Pridgen, a minor, seeks to recover from the Boston Housing Authority (the authority), the Consolidated Elevator Company (Consolidated) and the Westinghouse Electric Corporation (Westinghouse) for personal injuries sustained by him while he was trapped in the elevator shaft of a building owned by the authority. His mother, Minnie Lee Pridgen, seeks to recover from the same three defendants for consequential damages. Each plaintiff alleges in a separate count that Joseph’s injuries were caused (1) by the authority’s negligence, (2) by the authority’s wilful, wanton or reckless conduct, (3) by Consolidated’s negligence, (4) by Consolidated’s wilful, wanton or reckless conduct, and (5) by Westinghouse’s negligence.
The case is before us on various exceptions of the plaintiffs, including principally their exceptions to several rulings and orders of the trial judge which resulted ultimately in the entry of verdicts for all defendants on all counts.
On the basis of substantially undisputed evidence, the accident in which the plaintiff Joseph Pridgen was injured may
Additional evidence bearing on the conduct of particular defendants will be discussed later in this opinion.
At the close of the evidence the judge directed verdicts for the defendants as follows: for Westinghouse on all counts against it (twо counts alleging negligence), for Consolidated on all counts against it (two counts alleging negligence and two alleging wilful, wanton or reckless conduct) and for the authority on two counts against it (those alleging wilful, wanton or reckless conduct). By directing these verdicts the judge appears to have ruled that (a) if the plaintiffs were entitled to recover on proof of negligence alone, the evidence was insufficient to permit a finding of negligence on the part of Westinghouse or Consolidated, and (b) if, as a matter of law, Joseph and his two companions were trespassers when
The judge allowed the two counts alleging negligence on the part of the authority to go to the jury. However, by his instructions he limited the jury to the consideration and determination whether the authority was guilty of negligence by reason of anything which it or its agents, servants or employees did or failed to do after learning that Joseph had slipped off the roof of the elevator car and had become trapped in the elevator shaft. The jury apparently found that the authority was guilty of such negligence and they returned a verdict for Joseph in the amount of $175,000 and one for his mother in the amount of $25,000. The judge took the two verdicts under leave reserved (G. L, c. 231, § 120), and later, on motion of the authority, he ordered that they be set aside and that a verdict be entered for the authority on each of these two counts. We conclude that the action of the judge in setting aside the verdicts on these two counts was error. The reasons for our conclusions will be discussed separately as to each defendant. In determining whether the judge correctly directed or entered verdicts for the several defendants, we must consider the evidence separately as to each defendant, in its light most favorable to the plaintiffs.
Carr
v.
Arthur D. Little, Inc.
1.
The Direction of Verdicts for Westinghouse.
The plaintiffs argue that Westinghouse should have foreseen that children as well as adults would use the elevator in question and that it was negligent in the manufacture of the elevator with particular reference to the installation of the escape hatch in the ceiling and roof of the elevator car and thе failure to provide adequate safety devices on the roof. We do
There was undisputed evidence which showed the following.Westinghouse designed, manufactured and installed the elevators in the Bromley Heath housing project, including the elevator in the Bickford Street building, according to specifications which were approved by the architect for the project. The elevators were installed in 1954, were accepted by the general contractor for the project and were last serviced by Westinghouse in January, 1955. There was an emergency operating or stop switch on the roof of the elevator in the Bickford Street building the day after Joseph Pridgen’s accident, but no railing. A stop switch was called for in the elevator’s design, and manufacturing specifications required such a switch, but they did not require a railing or other type of safety device on the roof. The specifications did provide for an emergency exit or “escape hatch” in the ceiling of the elevator car, and required it to have a cover, but gave no details concerning the method of fastening such cover. The cover was missing the day after the accident. The Department of Public Safety elevator code regulations in effect on June 28, 1966, the day of the accident, required that “top emergency exit” covers be removable both inside and outside the elevator.
The design and manufacture of the elevator by Westinghouse complied with the architect’s specifications and also with the Department of Public Safety’s elevator regulations in effect at the time of the accident. The evidence would not warrant a jury in finding Westinghouse negligent. There was no error in the direction of the verdicts fоr Westinghouse.
2.
The Direction of Verdicts for Consolidated.
In 1964 Consolidated contracted with the authority to provide maintenance service for the twenty-one elevators in the Bromley Heath housing project until April, 1967. The contract provided that “[t]he work required to be performed . . . shall be done to and for each elevator and everything which was furnished with each of them
except car enclosures
(emphasis supplied) . . . provided, however, that . . . [Consolidated] shall
not
be required to: (1) repair, maintain, replace, or
The plaintiffs argue that the provision appearing later in the contract superseded the earlier provision excluding the “car enclosure,” and that the contract as thus interpreted made Consolidated responsible for seeing to it that the escape hatch cover on the car was in place, and for replacing the cover if it was found missing. They then argue that since the cover was missing from the car where the plaintiff Joseph Pridgen was injured on the day of the accident, the evidence was sufficient to permit the jury to find that Consolidated was liable to the plaintiffs. We do not agree.
The language of the contract is clear on the point that Consolidated was not responsible for the elevator cars or the escape hatch covers. The correct interpretation of the two quoted contract provisions is that the earlier definitional limitations and exclusions applied equally to the later provision relating to repairs and replacements.
We hold as a matter of law that Consolidated was not contractually responsible for the condition of the elevator car or “car enclosure” involved in this case.
The plaintiffs further argue that in any event their counts against Consolidated, both those alleging negligence and those alleging wilful, wanton or reckless conduct, should have been submitted to the jury for verdict on the basis of Consolidated’s alleged violation of the contract provision that “[a]t least one (1) [elevator] maintenance man shall be on duty at . . . [the Bromley Heath] project during regular working hours of the regular working days of the elevator trade.” Admittedly an employеe of Consolidated was assigned as a maintenance man at the project and had possession of a key to the rooms in the Bickford Street building in
We hold that the evidence was not legally sufficient to permit the jury to find that Consolidated was guilty of either negligence or of wilful, wanton or reckless conduct. 1 There was no error in the direction of the verdicts for Consolidated on all counts against it.
3. The Direction of Verdicts for the Authority — Summary of Additional Evidence Relating to the Authority. Our consideration of the exceptions to the direction and entry under leave reserved of verdicts in favor of the authority requires us to summarize evidence relating specifically to the authority which was not summarized earlier, and to state it in its aspect most favorable to the plaintiffs.
Joseph’s mother, the plaintiff Minnie Lee Pridgen, testified that she had returned home about 4 p.m. on the day of the accident and that her son had gone out to play immediately thereafter. A few minutes later, one of her son’s friends ran into her house and told her that Joseph was “in the elevator.” She went immediately to the project building where the elevator was located (the building at 20 Bickford Street) and called to her son in the elevator shaft. She saw a man standing in the hallway and asked him for help but he
At the trial Mrs. Pridgen identified a man sitting in the court room as the one to whom she had spoken in the hallway of the Bickford Street building, and she said he was called Bill. It was undisputed that the man so identified was named William Carney, and that he was in fact employed by the authority as a janitor or maintenance man at its Bromley Heath housing project at the time of the accident.
While there was evidence which was contrary to that of Mrs. Pridgen in material respects, we do not summarize it because the plaintiffs are not bound by it and the jury were free to disbelieve it.
Kelly
v.
Railway Exp. Agency, Inc.
The evidence as it relates to the authority has now been summarized in two parts. The first summary apрearing early in the opinion deals with the design and construction of the elevator in question and with its condition and operation on the day the plaintiff Joseph Pridgen was injured. The second summary appearing in the paragraphs immediately above deals with events which occurred after Joseph Pridgen had gone through the escape hatch of the elevator car and had reached the roof of the car.
The rule of liability for “wilful, wanton or reckless conduct” has been so frequently stated and discussed that nothing would be gained by discussing it further in this opinion. The problem confronting the court in most of the cases in which the benefit of the rule is claimed is not what the rule is, but rather whether the plaintiff’s evidence is sufficient to support a finding that the defendant’s conduct was in fact “wilful, wanton or reckless.” This case is no exception in that regard.
We hold that the evidence was not sufficient, on any version or aspect thereof, to warrant a finding of wilful, wanton or reckless conduct on the part of the authority. There was therefore no error in directing verdicts for the authority on the counts alleging such conduct by it.
5.
The Entry of Verdicts under Leave Reserved for the
The judge first instructed the jury “that as a matter of law, the position of the boy Joseph, the moment he got on top of the roof of the car, climbing up through the escape hatch, is that of a trespasser, and that the only duty owed to him at that point by the defendant, was the duty to refrain from wilful, wanton or reckless conduct that might cause an injury to him.” However, the judge clearly did not intend his instruction quoted above to be dispositive of the negligence counts since he permitted them to go to the jury. On those counts he instructed the jury in effect that once Joseph fell off the elevator car and was trapped and helpless in the elevator shaft, the duty owed him by the authority was to exercise reasonable care to avoid further injury to him. 2
The correctness of the judge’s initial instruction to the jury that the status of the plaintiff Joseph Pridgen as he went through the escape hatch and got on the roof of the elevator car was that of a trespasser is too obvious to require any discussion in support thereof.
Mikaelian
v.
Palaza,
300
Very few of our cases have involved a trespassing plaintiff in a position of peril attempting to recover in negligence, and we have never adopted a rule similar to that followed by other jurisdictions in the cases cited above. See
Lovett v. Salem & So. Danvers R.R. 9
Allen 557, 562-563 (1865);
Yancey v. Boston Elev. Ry.
This distinction between “condition” and “proximate cause” is one which we have used frequently in cases where the plaintiff is guilty of contributory negligence or of
In
Scott
v.
Boston Elev. Ry., supra,
the distinction was applied to a trespassing plaintiff, a minor, who had jumped onto and was riding on the outside of the defendant’s bus. He then jumped off, bumped into a car, fell down in back of the wheels of the bus, and was injured when the bus ran over him. This court upheld the direction of verdicts for the defendant on counts of negligence and wanton and reckless conduct, stating that on the negligence count, the only count on appeal, “[t]he plaintiffs rightly do not contend that while clinging to the outside of the bus the [minor] plaintiff was not a trespasser. . . . [citation omitted]. The jury would have been obliged to find that the injuries sustained by the plaintiff were closely bound up with the trespass, and that the jumping by the plaintiff from the bus, his bumping into an automobile and his falling in back of the wheels of the bus occurred almost at once . . ..In these circumstances we are of oрinion that the trespass by the plaintiff was ‘so intimately connected with his injury as a proximate cause that as matter of law he is barred from recovery on the first count based upon negligence.’
Query
v.
Howe,
In instructing the jury in the present case, the judge did not make Joseph Pridgen’s right to recover turn on whether there was an “intimate connection” between his trespass and his injury, but rather on whether the authority exercised reasonable care toward him once it became aware that he was trapped in the elevator shaft, regardless of his initial status as a trepasser. We believe the judge’s approach and instructions were correct. It is a more sound and useful approach than the “intimate connection” test when applied to the facts of the present case where the plaintiff was not injured while committing his initial trespass, but was allegedly injured by reasоn of what the property owner either did or failed to do
The standard of care required of a defendant in such a case warrants further discussion. As noted, many courts in other jurisdictions have described this standard in terms of a duty of reasonable care to avoid injuring the trespassing plaintiff whose trapped position is known.
Kuharski
v.
Somers Motor
Lines,
Inc.
In the context of the relationship between an owner or occupier (owner) of property and a trapped, imperiled and helpless trespasser thereon, we reject any rule which would exempt the owner from liability if he knowingly refrains from taking reasonable action which he is in a position to take and which would prevent injury or further injury to the
This is not a case of an intruder who is cut during the act of pushing his fist through the glass in a door which the owner has no duty to open for him; rather, we are dealing with one who is injured after his original trespass is effectively frustrated by virtual physical entrapment in a position of peril. We hold that as to the latter trespasser the owner owes a duty to exercise reasonable care to prevent injury or further injury to him, including, if necessary, the duty to take reasonable affirmative action. We reject any notion that this is a duty which can never be violated by nonfeasance. The owner in such a situation is required to act if, in the same circumstances, an ordinary and reasonably prudent person would have acted, and, in doing so, he must exercise the degree and standard of care which would have been exercised by an ordinary and reasonably prudent person in those circumstances. 7
The rule which we have stated is in part a reсognition by the law of the ever changing concepts of each individual’s rights and duties in relation to all other members of our society, and it reflects current standards of concern for the personal safety and well being of each individual. It is also consistent with a number of judicial precedents, both in this Commonwealth and elsewhere, indicating a trend toward the
In the recent case of
Mounsey
v.
Ellard,
We now turn to the question whethеr the evidence was sufficient, if believed, to warrant the jury in finding that the authority violated the “common duty of reasonable care” which it owed to Joseph Pridgen. Stated differently, the question is whether the evidence was sufficient, if believed, to warrant the jury in finding that the authority was negligent. To reach the answer we must ask two subsidiary questions: (1) whether the evidence permitted the jury to find that William Carney was negligent; and (2) whether it permitted the jury to find that Carney’s negligent acts, if any, occurred while he was acting within the scope of his employment, rendering the authority liable under the principle of respondeat superior. We hold that the answer is affirmative as to both subsidiary questions and therefore also affirmative as to the principal question.
The jury could have found the following on the basis of the evidence most favorable to the plaintiffs
(Kelly
v.
Railway Exp. Agency, Inc.
On the question whether Carney was acting within the scope of his employment when present in the hallway of 20 Bickford Street at the time of the accident, the jury could have found the following. Carney worked as a janitor or maintenance man at the Bromley Heath housing project at the time of Joseph Pridgen’s accident. For some time before the accident, Mrs. Pridgen had seen him every day working around the project, and he was the person who changed light bulbs in her building. At the time of the accident hе was in the hallway at 20 Bickford Street, during his regular working hours, “working with a broom, sweeping up.” When asked by the police officer if he worked there he answered, “yes.” Carney himself testified that he knew Mrs. Pridgen because he took care of her building. From this evidence the jury could reasonably infer that on the date of the accident Carney was in the authority’s building at 20 Bickford Street in his capacity as the defendant’s servant (compare
Heywood
v.
Ogasapian,
6.
Request for Additur.
The plaintiffs argue that if we should determine that they were entitled to the verdicts rendered in their favor by the jury, we should grant an additur to the sums the jury awarded as damages. Questions concerning inadequate or excessive damages are initially within the discretion of the trial judge and should ordinarily be raised by bringing a motion for a new trial, “stating the reasons relied upon in its support.” G. L. c. 231, § 127, as amended.
Bartley
v.
Phillips,
7.
Absence of Express Assent of Jury to Entry of Verdicts under Leave Reserved.
When the jury returned verdicts for the plaintiffs against the authority on the counts charging negligence, the judge ordered that they be entered under leave reserved as provided in G. L. c. 231, § 120, but he did not expressly request or obtain the assеnt of the jury to do so. See
Goetze v. Dominick,
8.
Additional Exceptions of Plaintiffs.
The plaintiffs saved numerous exceptions in addition to those we have discussed above. Many of them are treated as waived for failure to argue them in their brief. S.J.C. Rule 1:13,
9. Variance Between Plaintiffs’ Specifications and Proof. The authority argues in its brief that the plaintiffs are not entitled to recover on their counts alleging negligence because of a claimed fatal variance between their specifications and their proof of the authority’s negligence. Examination of the record shows that, in response to the authority’s motion, the plaintiffs specified that the negligence consisted of a failure to make timely and periodic inspections of the elevator in question, failure to prevent use of the elevator by minors, and failure to insure the repair and safeguard of a hatch cover.
The authority’s motion for a directed verdict was based “upon all the evidence and the pleadings.” It did not mention the specifications and did not allege a variance between the pleadings and the proof. In arguing the motion counsel
The case was fully and fairly tried on the issue whether the authority was negligent by reason of what its employee, Carney, did or failed to do after Joseph Pridgen became trapped. It is not now appropriate for the authority to argue an alleged fatal variance before this court.
Mitchell
v.
Lonergan,
10.
Disposition of Plaintiffs’ Exceptions.
The exceptions
(a) The exceptions to the allowance of the motions for directed verdicts for the defendants on the following counts are overruled: counts 2 and 7 against Westinghouse alleging negligence; counts 3 and 8 against Consolidated alleging negligence; counts 4 and 9 against the authority alleging wilful, wanton or reckless conduct; and counts 5 and 10 against Consolidated alleging wilful, wanton or reckless conduct.
(b) If, within twenty days of this opinion, the plaintiffs file in this court motions to amend their counts 1 and 6 to conform their allegations of negligence on the part of the authority to the proof thereof presented at the trial, such motions will be allowed and the plaintiffs’ exceptions to the entry of verdicts for the authority on those counts by the Superior Court acting under leave reserved will be sustained. Thereupon judgment is to enter for the plaintiffs on those counts in accordance with the verdicts of the jury.
(c) All other exceptions are overruled or treated as waived.
So ordered.
Notes
The discussion of what constitutes “wilful, wanton or reckless conduct” is deferred to our consideration of the plaintiffs’ exceptions to the direction of verdicts for the authority on the counts against it alleging such conduct.
The judge instructed the jury: “Now, you are entitled to consider this question. What were the duties of Carney as an employee of the Boston Housing Authority, if you find that he was in the hallway at that particular time. If you find that he was there and Mrs. Pridgen did ask him for help, then you should consider what could he have done as a reasonably prudent man to help the boy at that point? . . . [I]f he is now in a position of danger and helpless, you’re entitled to ask what should a reasonably prudent man in the position of Carney, have done at that point. . . with respect to helping the boy, considering the position of the boy as it then existed. . . . Now, once the boy was trapped ... so that he could not ... do anything more ... the defendant owed him a duty of reasonable care not to take any action which would further aggravatе his injuries in any way.”
In this case, which contains a clear expression of the traditional distinction, the court, in disposing of the plaintiff’s claim of negligence against the railroad said, at 437:
“But there is another view of this case which strikes at the foundation of the plaintiff’s claim. Her counsel has referred us to no case which supports the proposition that if a person is injured through no fault of a railroad company, the latter owes á legal duty to the person injured to assist him. There is of course a moral duty, but in performing that duty, the company is not liable if one of its servants does not use his best judgment in affording the necessary assistance. . . . If. . . [a duty of common humanity were] law, no humane or gratuitous act could be done without subjecting the doer of it to an action on the ground that the defendant ought to have acted more quickly or with more judgment. It is a doctrine which would allow an action against a good Samaritan and let a priest and a Levite go free.”
This section states the rule that “[t]he fact that the actor realizes or should realize that action on his part is necessary for another’s aid or protection does not of itself impose upon him a duty to take such action.”
Dean Prosser, after stating the common law rule imposing liability for misfeasance but not for nonfeasance, says: “The reason for the distinction may be said to lie in the fact that by ‘misfeasance’ the defendant has created a new risk of harm to the plaintiff, while by ‘nonfeasance’ he has at least made his situation no worse, and has merely failed to benefit. . . [the injured person] by interfering in his affairs. The highly individualistic philosophy of the older common law had no great difficulty in working out restraints upon the commission of affirmative acts of harm, but shrank from converting the courts into an agency for forcing men to help one another [footnotes omitted].”
An example of such criticism is the following language from Prosser, supra, at 340-341:
"Duty to Aid One in Peril. Because of this reluctance to countenance ‘nonfeasance’ as a basis of liability, the law has persistently refused to recognize the moral obligation of common decency and common humanity, to come to the aid of another human being who is in danger, even though the outcome is to cost him his life. Some of the decisions have been shocking in the extreme. The expert swimmer, with a boat and a rope at hand, who sees another drowning before his eyes, is not required to do anything at all about it, but may sit on the dock, smoke his cigarette, and watch the man drown. A physician is under no duty to answer the call of one who is dying and might be saved, nor is anyone required to play the part of Florence Nightingale and bind up the wounds of a stranger who is bleeding to death, or to prevent a neighbor’s child from hammering on a dangerous explosive, or to remove a stone from the highway where it is a menace to traffic, or a train from a place where it blocks a fire engine on its way to save a house, or even to cry a warning to one who is walking into the jaws of a dangerous machine. The remedy in such cases is left to the ‘higher law’ and the ‘voice of conscience,’ which, in a wicked world, would seem to be singularly ineffective either to prevent the harm or to compensate the victim.
“Such decisions are revolting to any moral sense. They have been denounced with vigor by legal writers. Thus far the difficulties of setting any standards of unselfish service to fellow men, and of making any workable rule to cover possible situations where fifty people might fail to rescue one, has limited any tendency to depart from the rule to cases where some special relation between the parties has afforded a justification for the creation of a duty, without any question of setting up a rule of universal application [footnotes omitted].”
Cases such as
Griswold
v.
Boston & Maine R.R.
In the case of Mounsey v. Ellard, supra, the present writer, by a separate opinion, concurred in the result but disagreed with the use of that case “as the vehicle for the promulgation of such a broad new rule of law.” The concurring opinion of Kaplan, J., at p. 717 suggested that “footnote 7 ... seems unfaithful to the rest of the opinion . . . [and that it] tends to perpetuate . . . the kind of tradition-bound and mistaken analysis that I had supposed the court was aiming to correct.”
These sections read as follows:
§ 336: “A possessor of land who knows or has reason to know of the presence of another who is trespаssing on the land is subject to liability for physical harm thereafter caused to the trespasser by the possessor’s failure to carry on his activities upon the land with reasonable care for the trespasser’s safety.”
§ 338: “A possessor of land who is in immediate control of a force, and knows or has reason to know of the presence of trespassers in dangerous proximity to it, is subject to liability for physical harm thereby caused to them by his failure to exercise reasonable care (a) so to control the force as to prevent it from doing harm to them, or (b) to give a warning which is reasonably adequate to enable them to protect themselves.”
§ 338, comment b, reads: “The rule stated in this Section applies to any moving force over which the possessor is in immediate control, in so far as the force is connected with a condition created or maintained by him. This is true irrespective of whether the particular force is actually set in motion by him, by a force of nature, or by a third party with or without his consent.”
Illustration 1, under § 338, comment b, reads: “A sees B, a trespasser, upon a part of A’s land previously free of trespassers, about to come in contact with moving machinery which is maintained by him upon his land. A could shut off the power but fails to do so. A is subject to liability to B, irrespective of whether the machinery was set in motion by A or his servant or by a mischievous trespasser.”
Admittedly some of our cases have described the scope of employment of an employee such as Carney in more restrictive terms. See e.g.,
Lanstein
v.
Acme White