274 Mass. 515 | Mass. | 1931
The plaintiff was injured by falling into an unguarded elevator well in a building, which was owned by Jacob and Louis Promboim, and was leased by them to
From the conflicting evidence at the trial a jury might find the following as facts: Prior to 1920 Jacob and Louis Promboim owned both buildings in question, and leased a tenement in one to the plaintiff, Jacob Promboim putting up, at that time, a clothesline from the premises so leased to a pulley borne upon the factory building, and agreeing that he would fix it and “ look after it all the time.” Jacob and Louis Promboim were then carrying on a junk and shoddy business in the factory building. From time to time as clothes caught on the line or as it needed fixing, the plaintiff went to the factory building to report and thereupon some one attended to it., She never fixed it herself. She hired her tenement and always paid her rent at the office in the factory building.
In 1920 the corporation was formed — Louis and Jacob Promboim with members of their families owned all the stock. They were officers and Jacob Promboim was the general manager. Jacob and Louis leased the factory building to the corporation which took over and carried on the business formerly conducted there by Louis and Jacob, confining itself to the manufacture of shoddy. On the day of the accident in November, 1924, the clothesline became tangled and the plaintiff went to the factory building. She found Jacob Promboim in the office. She asked him to clear the line. He called for an employee, but none
At the close of the testimony the defendants moved that the plaintiff elect against which of the defendants she would proceed. She, thereupon, discontinued as to Louis and Jacob Promboim. The defendants moved for directed verdicts in favor of each of them, and excepted to the denial of the motions. Requests for rulings were filed by the corporation, and exceptions were claimed to the alleged refusal to give the first, second and sixth requests. It excepted also to part .of the charge. The jury found for the plaintiff.
Obviously there is nothing in the exceptions to the refusal to direct verdicts for Jacob and Louis Promboim. After the discontinuance there was no action pending against them in which a verdict affecting them could be entered. Gray v. Cook, 135 Mass. 189. Taft v. Church, 164 Mass. 504.
The essential question presented is whether upon the evidence the corporate defendant could be found liable. We take the law to be settled that one rightfully upon the premises of another for purposes in which the owner or occupant has no beneficial interest takes the premises as he finds them, and has no claim to any duty of the
The plaintiff was rightfully upon the premises, if there by the permission or the invitation of the defendant. Romana v. Boston Elevated Railway, 218 Mass. 76; S. C. 226 Mass. 532. The long continued practice of going upon them for the payment of rent and to request action in regard to the clothesline affixed to its building will support findings that the corporation knew of her coming and permitted it. If so, an invitation was not essential to a lawful entry. We do not pause to consider whether in this connection an invitation to enter can be inferred.
The defendant contends that the plaintiff had no purpose in which it had an interest, and stands, therefore, as one to whom it owed no duty other than to refrain from wanton and wilful injury. There is no claim of wanton and wilful conduct. The jury, however, could infer that the defendant had an interest in maintaining the clothes-, line. Jacob and Louis Promboim, while occupants of the factory building, held it subject to a duty with reference to the line. Their duty did not cease when they leased to the corporation. They owned in large part, and they managed, the corporation. It could be found to have known, when it took the premises, of the obligation of the possessors with reference ■ to the line, a duty which could be
The injury to her resulted from a subsequent transaction. It could be found that after it knew that she was upon its premises, after it had failed to furnish an employee to clear the line, it undertook to show her a way in which she could go to fix it herself. In these circumstances a new obligation might arise — a duty not to send her without warning into a danger of which she was ignorant, but of which it knew or ought to have known. Moffatt v. Kenny, 174 Mass. 311, 315, and cases there cited. Compare Leuci v. Sterman, 244 Mass. 236.
The defendant contends that the knowledge of her presence, and of the absence of an employee to do the work, and the permission or request to attend to the line herself and the pointing out of the dangerous way, were the
It follows that the vérdict asked could not properly have been directed. Nor was the judge wrong in refusing to instruct the jury that the plaintiff at best was a licensee on the premises; that Jacob Promboim had no implied authority to invite her upon the premises; and that the disposition of the premises and the relation of the parties imposed no duty or liability beyond what the defendant would owe to every person not a trespasser who might enter. The charge covered the rules of law necessary for the guidance of the jury. We find no prejudicial error in it.
Exceptions overruled.