Levesque v. Hildreth & Rogers Co.
| Decision Date | 10 September 1931 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
| Parties | CELINIRE LEVESQUE, administratrix, v. HILDRETH & ROGERS COMPANY. |
April 6, 1931.
Present: RUGG, C.
J., CARROLL, WAIT SANDERSON, & FIELD, JJ.
Negligence Elevator, Invited person, Independent contractor, Causing death, Of one owning or controlling real estate. Evidence Competency. Damages, In tort. Practice, Civil, New trial Exceptions.
At the trial of an action of tort by an administrator against the owner of a building for the conscious suffering and death of the plaintiff's intestate resulting from the fall of an elevator car in the building, there was evidence that, shortly before the accident, the defendant, following reports to him that the elevator needed repairs, requested a competent elevator company to "make whatever repairs are necessary for complete safety"; that the repairs were made by employees of the elevator company, assisted by employees of the defendant who knew or should have known of its condition during the progress of the work; that the fall of the car occurred before the completion of the work and was due to failure properly to attach the cables, to adjust the safety appliances and to guard against the play of the car; that, through careless inspection, such defects were not observed or, owing to negligence due to the defendant's desire to combine use of the elevator with the carrying on of the repairs, were not corrected; and that the plaintiff, without knowledge that the repairs were in progress, was using the car at the time of its fall to deliver goods for use by the defendant in his business. Upon exceptions by the defendant after a verdict for the plaintiff, it was held, that
(1) A finding was warranted that the elevator company was not in full control of the repairs to the exclusion of the defendant;
(2) For that reason, and in view of the dangers attendant upon the making of the repairs, the defendant was not relieved of liability by his having selected a competent independent contractor to make them: he was bound to keep the premises reasonably safe for use by those whom he invited thereon;
(3) The evidence warranted a finding that the defendant was negligent;
(4) The verdict for the plaintiff was warranted; (5) It could not properly have been ruled that the defendant's culpability was "very slight";
(6) It was error, prejudicial to the defendant, to exclude evidence that an employee of the defendant, upon being told by the person in charge of the repairs for the elevator company that the elevator was good for another fifteen years, repeated that statement to the defendant; such evidence was material both on the issue of the defendant's negligence and on the issue of the degree of his culpability; and an exception by the defendant to its exclusion was sustained.
No error of law nor abuse of discretion appeared in the denial of a motion for a new trial of the action above described on the ground that the damages on the count for death, in the sum of $9,000, were excessive.
An exception, to the denial of a motion for a new trial of an action on the ground that the plaintiff's counsel had made an improper argument to the jury, must be overruled: that question must be raised at the trial.
THREE ACTIONS OF TORT, each for the conscious suffering and the death of the plaintiff's intestate. Writs dated October 1, 1928.
The actions were tried together in the Superior Court before Beaudreau, J. Material evidence is stated in the opinion. The judge denied a motion by the defendant in each action that a verdict be ordered in its favor. Rulings requested by the defendant and refused by the judge in each action are described in the opinion. The count for conscious suffering was waived in the first action. The jury found for the plaintiff in each action in the sum of $9,000 on the count for death; and for the plaintiff in the second and third actions in the sum of $2,000 on the count for conscious suffering. The defendant alleged exceptions. It also filed a motion for a new trial in each action on the grounds that the verdict was against the evidence, the weight of the evidence and the law; that the damages were excessive; and that counsel for the plaintiffs had made improper arguments to the jury. The motions were denied. The defendant alleged exceptions to such denial.
S. Parsons, (E.
Parsons & W.J. Bradley with him,) for the defendant.
M.A. Sullivan, (M.A. Cregg & H.M. Siskind with him,) for the plaintiffs.
The intestates were killed by the falling of an elevator in a building owned and controlled by the defendant. Two suffered consciously. Actions were brought against the defendant and against an elevator company that had undertaken repairs upon the elevator which may not have been fully completed at the time of the accident. Counts at common law were joined with counts under G.L.c. 229, Section 5, St. 1922 c. 439, and St. 1925, c. 346, Section 9. In the action by Levesque the common law count was waived. Damages in $2,000 on the common counts were awarded against both defendants; but upon the statutory counts, in each action, the jury assessed $500 against the elevator company and $9,000 against the owner. The latter saved exceptions to the refusal of the trial judge to direct verdicts in its favor; to his refusal to give certain instructions requested; and to the exclusion of testimony offered. By a supplementary bill of exceptions it excepted to denial of its motions for new trials based upon a claim that the award of damages for culpability is excessive as matter of law, and a claim of improper argument by counsel for two of the plaintiffs.
Salient facts shown by uncontroverted evidence were as follows: The deceased men employed by one Crouse as express teamsters, on June 26, 1928, went to the building of the defendant to deliver certain plates of lead to be used by the defendant in its business of publishing a newspaper. They opened a basement entrance by a key in the possession of one of them; got at an elevator used for freight and, at least, also for persons in charge of freight; and loaded twenty-seven plates of lead weighing about one thousand thirty pounds upon it; got upon it themselves, thereby adding about five hundred or six hundred pounds to its load; and started the hoist. At some point in the upward course, the car halted and then fell to the basement. When examined after the removal of the injured men, the hoisting cables were found to be wound upon the drum at the head of the elevator well, but with portions dangling below the pulley, somewhat frayed, bent upward near the end, and still bearing, hanging loose upon them in the loops, the U bolts or clamps which had fastened and held the cables to the car. The dogs of the safety clutches had scarred the guides but had turned completely over, thus failing to hold the falling car. The fuse of the electrically driven motor was much heavier than was called for by the estimated load of the car. A piece was broken from the guides. The elevator had been installed in 1913 and regularly inspected, at first by the builder, the Salem Elevator Works, and later monthly by the Otis Elevator Company, last on June 2, 1928. On May 25, 1928, an inspection was made by a representative of the company insuring the elevator, who on June 6 notified the defendant that he reported that the hoist cables should be renewed. Sometime in May the defendant asked the Salem Elevator Works, Incorporated to inspect; and under date of May 31 received a report that one Wilson in their employ stated "that the elevator is entirely safe to run, the...
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