316 Mass. 11 | Mass. | 1944
The defendant, a social club, hired of one LeBel the use of his picnic grounds for Sunday, August 25, 1940, from 9:30 a.m. to 6:30 p.m. The grounds had a dance hall, a ball park, a running track, an outside fireplace or grill for cooking food, and a set of six swings. Three upright posts, about eight or nine feet apart, supported a cross beam which was three to five inches thick and which was bolted
The principal contention of the defendant is that it was a licensee of the picnic grounds and that, while it had a right to use the grounds for the purpose of conducting a picnic or outing, the premises and the equipment remained in the control of the owner of the land. The plaintiff was not a party to any contract of letting between the owner of the grove and the club and so far as appears had no knowledge of its terms. If, as she contends, she was entitled by virtue of an admission fee paid to the club to enter the grove and to use the equipment which was there, then she was not a gratuitous licensee but a business visitor of the club and the latter was under an obligation to keep the premises reasonably safe for the use that she, as one attending the picnic, would ordinarily be expected to make thereof and to warn her of any dangers that might arise from the contemplated use and of which she would not be expected to have knowledge. Lanstein v. Acme White Lead & Color Works, 285 Mass. 328. Kelley v. Goldberg, 288 Mass. 79. Palmer v. Boston Penny Savings Bank, 301 Mass. 540. The liability of one using land for injuries caused to another whom he has invited to come upon the land for the purpose of transacting business with him does not depend upon the title that he may or may not have in the land but depends upon the obligation that the law imposes upon him on account of the invitation. If the defendant was itself a licensee that is immaterial. One having the privilege of selling candy in a department store under a contract with the proprietor and using a show case supplied by the latter, who has agreed to keep it in repair, owes a duty to those whom he has invited to trade with him to use due care to see that they are not injured by the de
The jury had before them the testimony of the treasurer of the club that the club paid $40 for which it had the use of the grounds and equipment for the day. Indeed, it was undisputed that the owner had given the club the use of the grounds for the purpose of conducting a picnic and that only those who bought a ticket from the club were to be admitted. The jury were instructed that if the club was not in possession of the grounds and had not acquired the right “to sell the use of these swings,” then the club was not hable, but that if, the club for a consideration gave the plaintiff the privilege of using the swings, then it was bound to exercise care to see that the swings were reasonably safe for such use as might ordinarily be made of them. The jury must have understood that the club was not to be held responsible unless it had possession of the grounds and equipment and that this necessarily included control over the swings. The club had hired the grounds for only a day and it did not have as full an opportunity to inspect and to remedy such defects as might be found as it would have had if its occupancy was for a longer period. Oxford v. Leathe, 165 Mass. 254, 255. Yet there was evidence that the end of the cross beam had separated from the top of one of the posts and was held in position by a bolt which had been bent so that a iperson sitting on the swing nearest to this post would cause the swing to sag to such an extent as to permit the seat of the swing to rest upon the ground, and that this condition had existed for more than two hours before the accident. Four or five hundred persons attended the picnic and it could be anticipated that at least some, if not many, would use these swings. The issue of the defendant’s negligence was properly left to the jury. Thompson v. Lowell, Lawrence & Haverhill Street Railway, 170 Mass. 577. Blanchette v. Union Street Railway, 248 Mass. 407. Wilson v. Norumbega Park Co. 275 Mass. 422. Am. Law Inst. Restatement: Torts,
There was evidence that a member of the club could for $1.50 purchase a book of chances to win a cash prige and that upon receipt by the club of the $1.50 he would get a string tag admitting him to the grounds or he could pay $1.25 for this tag. Nonmembers could secure admission only by the purchase of a book of chances. The defendant’s answer did not set up any illegality. There was also a printed circular which stated that the tickets were nontransf erable. The plaintiff’s father, a nonmember of the club, bought four tickets for himself and his family. The defendant contends that, the plaintiff’s ticket being nontransf erable, she had no rights in the picnic grounds other than those of a gratuitous licensee. There is nothing in this contention. If the club had the right to revoke the ticket, it never exercised that right. There was no evidence that the plaintiff knew of any restrictions on the right of a ticket holder. Neither was there any evidence that anything whatever was printed upon the admission tag. The plaintiff was not bound by any restrictions unless they were brought to her notice and in the absence of such notice she could reasonably assume that she had all the rights of a business visitor. Kushner v. McGinnis, 289 Mass. 326. Brennan v. Ocean View Amusement Co. 289 Mass. 587. O’Brien v. Freeman, 299 Mass. 20. Sandler v. Commonwealth Station Co. 307 Mass. 470. Adams v. George Lawley & Son Corp. 314 Mass. 87. Furthermore, the sale of four tickets to the plaintiff’s father might well
What has been said demonstrates that there is no error in any of the matters respecting which the defendant saved exceptions.
jExceptions overruled.
