Le Blanc v. Atlantic Bldg. & Supply Co.

• Decision Date: 10 February 1949
• Citation: 323 Mass. 702,84 N.E.2d 10
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: GEORGE LEBLANC v. ATLANTIC BUILDING & SUPPLY CO., INC.

323 Mass. 702

84 N.E.2d 10

GEORGE LEBLANC v. ATLANTIC BUILDING & SUPPLY CO., INC.

Supreme Judicial Court of Massachusetts, Essex.

February 10, 1949

October 5, 1948.

Present: QUA, C.

J., LUMMUS, DOLAN WILKINS, & WILLIAMS, JJ.

Negligence, One owning or controlling real estate, Lumber yard, Invited person.

A finding, that an employee of a customer of a lumber yard was a business visitor while in the yard with the customer getting shingles from a shed therein, was warranted by evidence that, although the customer and the employee entered the yard and went to the shed for the shingles without stopping at an office at the entrance to the yard to arrange for purchase of the shingles, as was expected of business visitors ordinarily the customer was an old customer and had done the same thing on frequent previous occasions with the knowledge and acquiescence of the proprietor of the yard.

A finding of negligence on the part of the proprietor of a lumber yard toward a business visitor, injured when he tripped over a piece of canvas as, carrying a bundle of shingles, he stepped down from a raised platform of a shed in the yard, was not warranted where the evidence showed that the injured visitor had seen the canvas lying in plain view in the yard a few feet out from the shed when he went thereto and, although there was evidence that before he came out of the shed the canvas had been moved to a position "right near the doorway, against" the shed, it was a matter of conjecture whether it had been moved by a companion of the injured visitor or by an employee of the proprietor of the yard working near by.

TORT. Writ in the Superior Court dated November 20, 1946. The action was tried before Collins, J.

E. J. Garity, for the defendant. G. J. Tauro, for the plaintiff.

WILLIAMS, J. This is an action of tort for personal injuries received on June 4, 1946, on premises owned and maintained by the defendant on Broad Street, Lynn. After a verdict for the plaintiff the case comes here on the parties' bills of exceptions wherein the defendant's exceptions are to the denial of its motion for a directed verdict and to a portion of the judge's charge. The plaintiff's exceptions have been waived.

On the morning of the accident the plaintiff, who was employed as a carpenter by one John Crooker, went with his employer and the latter's brother Joseph Crooker to the defendant's lumber yard to obtain shingles. Without speaking to any employee of the defendant, the three drove into the yard in an automobile and parked opposite and about twenty feet away from one of the entrances to a shed in which bundles of shingles were stored. They entered the shed, selected some shingles and brought them out to the automobile. While returning from a second trip into the shed, the plaintiff fell and was injured.

There was evidence that ordinarily business visitors were expected to stop at the office at the entrance to the yard and arrange for the purchase of required material with the defendant's salesmen, but that John Crooker, being an old customer, had frequently and with the knowledge of the defendant's employees entered the yard without stopping at the office selected the lumber himself, and then had accounted for it as he left the yard. This prior conduct had met with the defendant's acquiescence. The jury could have found that John Crooker was in the yard as an invited person and at the time and place of the accident was not acting outside the scope of the defendant's implied invitation. Grogan v. O'Keeffe's Inc. 267 Mass. 189. Silva v. Henry & Close Co. 279 Mass. 334 , 336. O'Brien v. Harvard Restaurant & Liquor Co. Inc. 310 Mass. 491 . As

Crooker's employee the plaintiff was acting within the limits of the invitation to Crooker. Adams v. George Lawley & Son Corp. 314 Mass. 87 .

When the automobile stopped, the plaintiff saw a piece of canvas in the driveway between the automobile and the doorway of the shed five or six feet out from the building. The canvas was about four feet wide and five or six feet long and was wrinkled up. The doorway or platform in front of the doorway was raised one and a half feet from the ground. The men entered the shed and brought out to the automobile three bundles of shingles, each bundle weighing seventy pounds. They returned for more shingles, John Crooker entering the shed first, then the plaintiff, and last Joseph Crooker. Both the plaintiff and Joseph Crooker testified that at that time they saw the canvas in the driveway. The shingles were piled in the rear of the shed some fifteen feet from the doorway. John Crooker lifted a bundle of shingles and went out. The plaintiff followed him and Joseph Crooker followed the plaintiff. As the plaintiff came out behind John and stepped down from the platform, he fell over the piece of canvas. When the automobile drove up to the shed an employee of the defendant one Segal, had been piling lumber ten to twenty feet away. His work for the defendant consisted in piling lumber, loading trucks and cleaning up the yard. At the time the plaintiff fell Segal was four or five feet away from him. John Crooker was then at the automobile depositing his shingles and Joseph Crooker was still in the shed. The plaintiff testified that "he stepped down, started to step down, and the end of his foot caught on that piece of canvas that was in the driveway, it looked like the same one; he tripped and went down; . . . when he got caught on it the canvas was right near the doorway, against the building." As he stepped down "he did not look where he was stepping down to . . . he was looking ahead." He...