Angevine v. Hewitson

• Decision Date: 28 February 1920
• Citation: 235 Mass. 126,126 N.E. 425
• Parties: ANGEVINE v. HEWITSON et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

235 Mass. 126

126 N.E. 425

ANGEVINE

v.HEWITSON et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Feb. 28, 1920.

Report from Superior Court, Suffolk County; Marcus Morton, Judge.

Action by Eva Angevine, by next friend, against Rachel S. Hewitson and another, resulting in directed verdict for defendants. On report to the Supreme Judicial Court. Judgment ordered for defendants.

De Courcy, J., dissenting.

Wendell P. Murray, of Boston, for plaintiff.

Walter S. Pinkham, of Boston, for defendants.

PIERCE, J.

This is an action of tort to recover damages for physical injuries sustained by the plaintiff on May 2, 1918, caused by falling down a dumb-waiter well in a hallway used by tenants of the defendant Rachel S. Hewitson, the control thereof remaining in the landlord. At the close of the evidence before a jury, the presiding judge on motion directed a verdict for the defendants, with the stipulation that final judgment is to be entered for both the defendants on the verdict if the ruling and direction was right; but if the case should have been submitted to the jury, judgment is to be entered for the plaintiff in the sum of $500.

The material facts in support of the plaintiff's case in substance are as follows: The house was an old house, probably 40 years old; was a three-flat house, being one-half of a six-apartment building. The apartment on the second floor was hired by the father of the minor plaintiff, who did not examine it before it was hired on his behalf by his wife. The family moved in on April 17, 1918, and moved out on July 1, 1918. There is a front hall and stairs and a back hall and stairs running to each of the three apartments, the back hall and stairs being used in common by all the tenants of the house. Within the stairway in the back hall, opposite the kitchen door, there was a dumb-waiter shaft with the stairs running around it. There were places for the dumb-waiter to stop at each floor. It was not in use during the tenancy of the father; the rope was cut and it rested at the bottom of the shaft. The shaft consisted of the space between upright posts, with a removable gate running between guides on the posts at each floor. ‘The way of using the dumb-waiter was to lift the gate out and run the dumb-waiter up and down and then replace the gate between the guides.’ An inspector of the building department of the city of Boston examined the dumb-waiter shaft on May 15, 1918. In substance he testified that the plaintiff fell from the floor to the top of the car and thence to the basement floor, 22 feet; that the opening at the second floor was 26 inches wide; that the gate was 2 feet and 6 inches high; that it was set in guides; that there was nothing to indicate that there had been any change in the elevator well or gates since the house was built; ‘that the gate apparently was strong and the supports were strong and no trouble with the way it was built or defect in any way.’

The father of the plaintiff testified that he was a carpenter; that he did not examine the premises before hiring them and ‘his attention was not called to the gate at any time before the accident’; that after the accident he examined the gate, the guides and posts, and then made a sketch to a scale which was produced in court, and is before the full court on the report. In detail the sketch shows, and the witness testified, that the two posts which formed the well were 3 3/4 x 3 3/4 inches square; that they were made of hard pine and ran from the cellar to the roof, straight up and down, 24 inches apart measuring on the inside; that there were cleats attached to the posts which were 3/8 x 3/4 of an inch, nailed to the posts the 3/8 way; that the tongue of the gate was 3/8 of an inch from the end of the bar, and the edge of the little tongue was beveled a little; that the gate was 23 11/16 inches measured across from tenon to tenon; that is, 5/16 of an inch short of 2 feet, giving 1/16 of an inch bearing against the cleat; that the gate was painted over, but was probably made of hard pine; that he measured the gate at the bottom as well as at the top, and that it was square and the same width top and bottom, and that there was only 1/16 of an inch bearing against the cleats which formed the guides; that part of this 1/16 was taken up by the bevel; that you could just put your hand against the gate and push it in or out, either one; that the gate did not set steadily in the guides, but rattled; that there was 5/16 of an inch play between the gate and the guides; and that there was no change in condition of the gate and dumb-waiter shaft between the beginning of tenancy and the accident.

The plaintiff testified that--

‘she will be ten years old on the 3d day of July, 1919; that she lived on the second floor of the building, 59 Monadnock street, in 1918, and was hurt on the 2d day of May of that year about 4 o'clock in the afternoon; that just before the accident she came up the back stairs with another little girl * * * and went into the apartment of her father and brought out two balls, and that she was giving one of these to Bessie when it dropped and rolled over near the elevator well, and that in picking it up she leaned against the gate and fell down the elevator well.’

There was further evidence corroborating the testimony of the father, inspector and plaintiff.

Against the exception of the defendants, the presiding judge admitted in evidence subsection (f) of section 75, division C of the Board of Elevator Regulations, which reads:

‘Gates are to be made of metal or of hard wood, and are to be strong and rigid and so constructed and installed that they cannot be sprung from their guides. Bar gates hinged at one end shall be of such design and construction as to insure their accurate closing and their rigid support when closed.’

The evidence should have been excluded. Section 75, subsections (a), (b), (c) and (d), deals with landing gates in general and with landing gates used in connection with the special forms of elevators described in the subsections; dumb-waiter elevators are excepted in terms. And subsection (f) which defines the form, design and construction of the gates referred to in subsections (a), (b), (c), and (d), is not applicable to the form of elevator at the place of the accident.

In this commonwealth it is settled that guests and members of the family of a lessee have no greater rights in tort against the landlord than the lessee to recover damages for injuries caused by defective condition of the leased premises or the premises connected therewith. Woods v. Naumkeag Steam Cotter Co., 134 Mass. 357, 45 Am. Rep. 344;Bowe v. Hunking, 135 Mass. 380, 46 Am. Rep. 471. It is plain the lessee, the father, took the premises with its hallways and stairways in the condition they were or appeared to be in at the time of the letting, unless the defects complained of were hidden, were in the nature of a trap, were known to the landlord, and were unknown to the lessee. Cutter v. Hamlen, 147 Mass. 471, 18 N. E. 397,1 L. R. A. 429;Martin v. Richards, 155 Mass. 381, 386, 29 N. E. 591;O'Malley v. Twenty-Five Associates, 178 Mass. 555, 60 N. E. 387. There is no evidence that the landlord in fact knew that the gate was defective in the respect complained of and it is plain that she could not have informed or warned the lessee of any fact or facts in connection with the construction or adjustment of the gate that were not readily discoverable by a person of the lessee's experience and skill in carpentry. Martin v. Richards, supra, 155 Mass. 382, 29 N. E. 591. In the opinion of a majority of the court, it follows that the landlord in the case at bar owed no duty to the lessee or to the plaintiff to make the premises safer than they were at the time of letting, or to warn them or either of them of dangers which were then discoverable by the lessee.

By the terms of the stipulation ‘final judgment is to be entered for both the defendants.’

So ordered.

DE COURCY, J. (dissenting).

I am unable to agree to the opinion of the majority of the court, and think it proper to express the reasons for my dissent. The plaintiff's parents on April 17, 1918,...