329 Mass. 615 | Mass. | 1953
The plaintiff was injured as he entered the side door of the premises of the defendant Ort’s Bar & Grill, Inc., hereinafter called Ort, and fell through a trap door in the floor, the cover to which had been removed by the employees of the defendant August A. Busch Company of Massachusetts, Inc., hereinafter called Busch, in the course of delivering goods. The plaintiff had a verdict against each defendant, but the judge under leave reserved and subject to the exceptions of the plaintiff entered verdicts for the defendants. The defendants excepted to the admission of certain evidence, to the denial of requests for instructions, and to portions of the charge. All these exceptions are presented in a consolidated bill of exceptions.
Ort’s premises were located at the corner of Essex Street and Hersey Place where it conducted a restaurant, served liquor,, and provided entertainment for its patrons who numbered about ten thousand a week. One entrance to this establishment was set diagonally in the building at the corner of Essex Street and Hersey Place and besides there were two other entrances on Essex Street. A side door was located on Hersey Place at a distance of about fifty-five
The plaintiff accompanied by another went along Hersey Place on the afternoon of July 5, 1949, to the side door which was open. They intended to purchase beer at Ort’s. The plaintiff stepped in and fell through the trap door into the cellar. The cover had been removed by the employees of Busch who at the time of the accident were in the cellar putting into the refrigerator fifty cases of beer which they had put through the trap door. One Bergman, the assistant manager of Ort’s, had assisted these employees to barricade the three inside edges of the cover before the cover had been removed by an employee of Busch. The evidence was conflicting as to whether barriers had been placed on the Hersey Place side of the side door. If there was a lack of barriers on the outside of this side entrance that fact was plainly visible from the inside of Ort’s and also from the cellar.
The defendants contend that in using this side door which was open for the purpose of receiving goods the plaintiff was not a business visitor. There was evidence that this door was frequently opened during warm weather but not in the winter months, and that it was convenient for those customers who desired quick service at the bar. There was testimony from one customer that she had used this side door five or six times in all within a period of eighteen months; that she entered through this door in her visit in the latter part of June, 1949, and she was then in Ort’s for about an hour; that during this time several persons en
This evidence was competent to show that Ort had knowledge of the use of this side door by its customers, that it did not object to such use but that it treated them and traded with them the same as customers who came in by the front entrances, and it also tended to show that persons, like the plaintiff, who were acquainted with the use of this door when it was open, were reasonably led to entertain a belief that they were impliedly invited to use it in entering and leaving
These cases are distinguishable from MacGillivray v. First National Stores Inc. 326 Mass. 678, where that portion of the premises where the plaintiff was injured was obviously not a part of the store where customers were invited to go, and from McCarthy v. Waldorf System, Inc. 251 Mass. 437, where the plaintiff was not a business visitor and was injured by coming to the place of the accident not by any invitation of the defendant.
Ort next contends that Busch was acting as an independent contractor in delivering the beer and that its exception should be sustained to that part of the charge where the jury were told that if the plaintiff was a business visitor of Ort the latter would not be relieved of the duty which it owed the plaintiff merely because Busch was doing the work. It also excepted to a denial of a request for an instruction that, if the plaintiff’s injury was due to a failure of Busch properly to safeguard the opening to the cellar, Ort would not be liable.
If we assume that Busch was acting as an independent contractor and that the work in which it was engaged was not inherently dangerous, Whalen v. Shivek, 326 Mass. 142,
The delivery of the beer was being made in the customary way and involved the removal of the trap door. The jury could find that Ort’s manager or assistant manager knew or ought to have known of its delivery, that the trap door was open, that customers used the side door, and that there was no barrier to protect them or any precautions taken to prevent them from falling into the opening. The failure to give any warning to the plaintiff could be found to be a breach of the duty that Ort owed him and could be found to constitute negligence. The liability of a storekeeper who keeps open his premises and continues to invite customers to enter and trade with him while work is being done therein, which renders them defective and unsafe for the use of customers and results in an injury to the customer, may be predicated on a breach of the obligation owed the customer and need not depend upon any negligence of the independent contractor. See Curtis v. Kiley, 153 Mass. 123; Levesque v. Hildreth & Rogers Co. 276 Mass. 429, 434; Newell v. K. & D. Jewelry Co. Inc. 119 Conn. 332, 334; Corrigan v. Elsinger, 81 Minn. 42; Besner v. Central Trust Co. 230 N. Y. 357; Lineaweaver v. Wanamaker, 299 Pa. 45; Kimatian v. New England Telephone & Telegraph Co. 49 R. I. 146; Prosser, Torts, page 486; Harper, Torts, § 292; Restatement: Torts, § 343.
In addition to the exceptions claimed by Ort and Busch which we have discussed, Busch saved other exceptions pertinent to its case alone.
The denial of Busch’s fourth and fifth requests, to the
Busch contends that it did not know that the side door was used by customers of Ort and so there was no duty to take precautions to protect them. The employees of Busch were undoubtedly invitees of Ort in delivering the beer, Wright v. Perry, 188 Mass. 268, 270, Power v. Beattie, 194 Mass. 170, Murphy v. Avery Chemical Co. 240 Mass. 150, 152; but the plaintiff could also be found to be rightfully on the premises when the accident occurred. O’Neil v. National Oil Co. 231 Mass. 20, 27. Sughrue v. Booth, 231 Mass. 538. The fact that these employees were ignorant of the plaintiff's right to be there did not deprive him of his rights. Howard v. Holman, 203 Mass. 445, 448. These employees knew that the restaurant was in full operation. There is no contention that they actually knew that the door was not used by customers. It could be found that, if they were ignorant as to the use of the side door, it was their duty to ascertain the exact situation and to protect those who might lawfully use the side door. Garland v. Townsend, 217 Mass. 297, 301. Dennehy v. Jordan Marsh Co. 321 Mass. 78, 80-81. Kimatian v. New England Telephone & Telegraph
The defendant Busch also contends that the control of the trap door at the time of the accident had passed to the employees of another brewery who were waiting to deliver kegs of beer. There was evidence from which a jury could find that Busch’s employees had not abandoned their control over the trap door or that they had not transferred charge of it to the employees of the other brewery. Busch’s employees had not finished the delivery of the beer. At the time of the accident they were engaged with both of the employees of the other brewery in putting the cases of beer into the refrigerator in the cellar. It may well be that the employees of the other brewery intended to use the trap door in the delivery of the kegs of beer after Busch’s men had finished their work but the accident occurred before that time. . It was for the jury to say whether the control of the trap door remained in Busch when the plaintiff fell through it. Gray v. Boston, Revere Beach & Lynn Railroad, 261 Mass. 479, 483. Marston v. Rose, 275 Mass. 443, 447. Souza v. Becker, 302 Mass. 28.
The plaintiff’s exceptions are sustained. All of the exceptions of the defendants are overruled. The verdicts entered by the judge are set aside and judgments are to be entered upon the verdicts returned by the jury.
So ordered.