Kelley v. Goldberg
| Decision Date | 24 October 1934 |
| Citation | 288 Mass. 79,192 N.E. 513 |
| Parties | KELLEY v. GOLDBERG et al. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Exceptions from Superior Court, Worcester County; W. A. Burns, Judge.
Action of tort by Minnie A. Kelley against Leon Goldberg and others, heard by a judge of the superior court without a jury. Judgment was ordered for the plaintiff upon the report of an auditor in the sum of $2,300 and interest, and the defendants bring exceptions.
Exceptions overruled.
F. P. McKeon and N. Fusaro, both of Worcester, for plaintiff.
J. Joseph MacCarthy, of Worcester, and J. W. Ceaty, of Boston, for defendants.
This is an action of tort to recover compensation for personal injuries sustained by the plaintiff and consequential damages. The case was referred to an auditor who made findings of fact. The plaintiff's motion for judgment was allowed and the defendants excepted.
The motion for judgment was allowed rightly. See Ballou v. Fitzpatrick, 283 Mass. 336, 186 N. E. 668.
The auditor found that on December 1, 1928, the plaintiff sustained personal injuries when, in attempting to get into a parked automobile, she fell into a greasing pit on premises leased to the defendants, ‘used as a gasolene filling station and a place for oiling and greasing automobiles and for the parking out of doors of automobiles upon the payment of a required charge.’ And he found that the owner and operator of the parked automobile paid the defendants the required charge for parking it. The auditor also found, as a conclusion from other facts found, that the plaintiff was in the exercise of due care at the time of the accident, that the defendants extended to the operator of the automobile and ‘to those riding in it an invitation to enter said premises for the purpose of parking’ the automobile thereon, and that the plaintiff's accident was due to the negligence of the defendants or their agents. And the plaintiff's damages were assessed. These findings support the judgment and so far as they are conclusions from other facts found are warranted by such facts.
The defendants' duty-breach of which would constitute negligence-to persons invited to enter the premises for the purpose of parking an automobile thereon for hire was to use reasonable care to keep the premises in a reasonably safe condition for such persons' use according to the invitation, or at least to warn them against any dangers attendant upon this use which were not known to them or obvious to any ordinarily intelligent person and either were known or in the exercise of reasonable care ought to have been known to the defendants. Crone v. Jordan Marsh Co., 269 Mass. 289, 291, 169 N. E. 136;Fielding v. S. Z. Poli Realty Co., 274 Mass. 20, 22, 174 N. E. 178.
The subsidiary facts found warranted the conclusion that the plaintiff, when injured, was using the premises according to the defendant's invitation. The premises were seven thousand square feet in area, of which about three thousand square feet were paved with concrete. A sign conspicuously displayed bore the words ‘Parking-25 cents.’ The owner and operator of the automobile, which was occupied also by the plaintiff and two other women, drove it into the parking space for the purpose of parking it. The four women got out of the automobile and an attendant in the employ of the defendants parked the automobile lengthwise over a greasing pit within the paved area. About three feet in front of this automobile another automobile was parked partly over the pit. Later in the day, about 5:45 in the afternoon, the owner and the plaintiff returned to the parking space. The two other women, already in the automobile, called to them and an attendant in the employ of the defendants indicated by motion of his hand where the automobile was parked. An attendant would have driven the automobile from its position over the pit if the owner had requested him to do so. The owner opened the door on the left side and placed some packages in the automobile and the plaintiff at the same time started to go around in front of the automobile in order to enter it on the right side and in so doing fell into the pit. The nature of the parking space and the conduct of the defendants' employees warranted the inference that the defendants' invitation to use...
To continue reading
Request your trial
-
Mounsey v. Ellard
...applied and cannot be used to explain decisions like Pope v. Willow Garages Inc., 274 Mass. 440, 174 N.E. 727, and Kelley v. Goldberg, 288 Mass. 79, 192 N.E. 513, where the plaintiffs were treated as invitees despite the fact that there was no mutuality of economic interest between the plai......
-
Another v. Target Corp. & Another
...to any ordinarily intelligent person and of which the property owner knew or reasonably should have known. See Kelley v. Goldberg, 288 Mass. 79, 81, 192 N.E. 513 (1934). If the plaintiff was a licensee, defined as a person who entered onto the landowner's property for the licensee's “own co......
-
La Sell v. Tri-States Theatre Corp.
... ... 440; ... Restatement of the Law of Torts (American Law Inst.) §§ 342, ... 343; 20 R.C.L. page 55, section 51; Kelley Goldberg, 288 ... Mass. 79, 192 N.E. 513, 514; Cole North Danville Coop ... Creamery Ass'n, 103 Vt. 32, 151 A. 568, 570; Breit Haas, ... 126 Fla ... ...
-
Gugel v. Sears, Roebuck & Company
...is ever considered as one of law for the court." See also Hayes v. Richfield Oil Corp., 38 Cal.2d 375, 240 P.2d 580; Kelley v. Goldberg, 288 Mass. 79, 192 N.E. 513; Davis v. Wade Motor Sales, 100 N.H. 12, 117 A.2d Plaintiff further contends that the defendant was negligent in that its emplo......