308 Mass. 66 | Mass. | 1941
The plaintiff, a representative of the United States department of agriculture, went on the morning of May 24, 1938, to the warehouse owned by the defendant, in which was stored a large quantity of unsalable hops owned by The Lyon Brothers Corporation, for the purpose of supervising the distribution of the hops to local farmers, in accordance with a plan of this Federal department to divert from the market certain surplus agricultural commodities for which the owner was to be paid. When he arrived at the warehouse he took a position on the loading platform, in order to see that bales, which were brought down from the second and third floors of the warehouse by means of a freight elevator and then carried by hand trucks to the platform, were loaded on the farmers’ trucks and that each farmer received the amount allotted to him. The work of removing the hops was done by employees of The Lyon Brothers Corporation, hereafter called the corporation, under the direction of one Lyon, its general manager. From time to time during the day, when the movement of the hops was interrupted, Lyon left the platform, went into the building, and the delivery of the hops was resumed. About half past three in the afternoon Lyon told the plaintiff that it was necessary for him to leave and that the plaintiff should “finish the work of getting those hops out, checked out.” Lyon then left. The shipment of hops stopped in an hour and the plaintiff could hear the men joking and laughing on the second floor. There were trucks waiting to be loaded and the farmers were anxious to take away the hops. The plaintiff went from the platform through a door into the warehouse in search of a stairway to the upper floors in order to have the men complete the delivery of the hops. He had never been on the first floor of the warehouse before, but on a previous visit when he had observed the hops he had seen a stairway. He had never seen the elevator although he assumed an elevator had been used in movement of the goods. At the time he left the platform it was daylight. It was dusky inside the building, but light came through the windows at the end and he could see when he got inside the building. The marks made by
The defendant and the corporation were apparently family corporations, having in the main the same persons as officers and directors of each corporation. Both used the same office. The corporation occasionally paid some of the defendant’s bills. In March, 1937, the corporation began to remodel, at its own expense, a building connected with the warehouse, and this work was still in progress on May 24, 1938, when the accident occurred. The work had then cost the corporation about $100,000. When the work of remodelling began, the corporation commenced to use the second and third floors of the warehouse for the storage of hops. No lease of these floors had been drafted, but there was an “understanding” or an “oral agreement” that when the remodel-ling was completed a formal lease would be executed and that until this work was finished the corporation “was to stay on” in the warehouse.
In addition to the matters above recited ■— all of which a jury upon the evidence would be warranted in finding as facts — the parties agreed that the defendant was in control of the elevator at the time of the accident; that the gates were on the elevator and were in good repair and working order when the corporation moved into the warehouse; that at the time of the accident the gates were off the elevator, in violation of law; that they had been off at some prior time; and that, when properly operating, the gates would automatically be in position and protect the opening when the elevator was not at that particular floor. The judge, subject to an exception, denied a .motion to direct a verdict for the defendant. The parties having stipulated that, if there was error in the denial of the motion, judgment was to be entered for the defendant, otherwise judgment was to be entered for the plaintiff in the sum of $5,000, the judge reported the case upon his ruling denying the defendant’s motion for a directed verdict.
The plaintiff in order to prevail must show that his
The jury could find that, as a result of an agreement between the corporation and the defendant, the corporation transferred its office and moved its property into the warehouse and has since continued its use and occupancy of these premises; and that, in view of the entire agreement of which the use and occupancy by the corporation formed a part, the corporation had furnished consideration for such use and occupancy even if all matters arising from the agreement were to be finally adjusted and settled when the remodelling undertaken by the corporation was completed. The relation of landlord and tenant arises out of an agreement, express or implied, by which one enters
The defendant agreed that it was in control of the elevator and that the gates were in good repair and in working order when the corporation moved into the warehouse. The defendant was bound to exercise reasonable care to maintain the gates in this condition during the tenancy of the corporation. Bronstein v. Boston & Maine Railroad, 285 Mass. 491. The inspector of elevators on January 14, 1938, found that all the gates had been removed from the elevator landings. The defendant admitted that the elevator was not equipped with gates at the time of the accident, as required by law. Lyon, who was a director and clerk of the defendant, on the date of the accident left the loading platform whenever the movement of the hops to the platform stopped, and the jury could find that he knew or ought to have known that the gates were off the landing on the first floor. The accident happened in about an hour after Lyon had left, and it is a reasonable inference that the gates were not removed after he left. We need not decide whether the absence of the gates constituted a violation of law irrespective of the knowledge of their absence by the defendant. Commonwealth v. New York Central & Hudson River Railroad, 202 Mass. 394. Newton v. MeSweeney, 225 Mass. 402. The failure of the defendant to maintain these gates in the condition
The jury could infer that the plaintiff, in following the tracks which led from the shipping door to the elevator, stepped into the unguarded elevator well, Navien v. Cohen, 268 Mass. 427; Gavin v. Kluge, 275 Mass. 372, 377; Rocha v. Alter, 302 Mass. 155; Dunbar v. Ferrera Bros. Inc. 306 Mass. 90, 92, and could find that the accident would have been prevented if the elevator gate had been in place. Finnegan v. Winslow Skate Manuf. Co. 189 Mass. 580. Cushing v. Jolles, 292 Mass. 72.
It has been frequently stated that one who has incurred an injury while groping his way in a dark place with which he is unfamiliar is not in the exercise of due care. Benton v. Watson, 231 Mass. 582. Lanstein v. Acme White Lead & Color Works, 285 Mass. 328. Osgood v. Therriault, 290 Mass. 513. Herman v. Golden, 298 Mass. 9. But the locus was not in utter darkness. The accident happened at about half past three, standard time, on a pleasant afternoon late in May. The plaintiff could see as he walked inside the warehouse. It is difficult accurately to describe in a printed record the degrees of light. The plaintiff while a witness at the trial pointed out to the jury that there was as much light in the warehouse at the time of the accident as there would be in the court room (where the shades were partially drawn) if the electric lights were off at the time he was testifying — on a clear, pleasant morning in June. He assumed that there was an elevator in the warehouse but he could rely to a reasonable extent upon the expectation that it would be equipped with a gate. Gordon v. Cummings, 152 Mass. 513, 518. Hamilton v. Taylor, 195 Mass. 68, 70. The light might have been ample to enable him to discover easily a gate if there were one. Lyon did not inform him of any danger when he requested him to “finish the work of getting those hops out.” It cannot be said as matter of law that the plaintiff was contributorily negligent in proceeding as he did in the ware
In accordance with the stipulation of the parties judgment must be entered for the plaintiff in the sum of $5,000.
So ordered.