Boudreau v. Johnson
| Decision Date | 04 March 1922 |
| Citation | 241 Mass. 12,134 N.E. 359 |
| Parties | BOUDREAU v. JOHNSON et al. (two cases). |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Exceptions from Superior Court, Suffolk County; Robert F. Raymond, Judge.
Two actions by George L. Boudreau, by his next friend, and by Alfred C. Boudreau, against Benjamin N. Johnson and others, trustees under the will of Maria L. Phillips, for personal injuries sustained by the first-named plaintiff from the fall of an elevator in a building owned by the trustees and for expenses incurred by his father, the second-named plaintiff, and services lost by him. Directed verdict for defendant in each case, and plaintiffs bring exceptions. Exceptions overruled.
Plaintiff excepted to the admission of a lease from the trustees to plaintiff's employer under which it was claimed the employer had held over and also excepted to the direction of the verdict. The lease provided that no charge was to be made by the lessors for the lessee's use of a freight elevator, but that the lessee agreed to use the elevator for the transportation of freight only in common with others at its own risk.John J. Walsh, of Boston, for plaintiffs.
Romney Spring, of Boston, for defendants.
These are two actions of tort by writs dated July 7, 1919. George L. Boudreau, a minor, hereinafter called the plaintiff, sues to recover damages for personal injuries sustained by him on May 31, 1919, resulting from the fall of a freight elevator in the building numbered 124-126 Summer street, Boston. Alfred C. Boudreau, the father of the plaintiff, sues to recover for expenses incurred by him as a result of the injuries sustained by his son and for loss of his services. At the close of the evidence a verdict was directed for the defendant in each case.
The plaintiff, at the time he was injured, was in the employ of the Ryan-Cushing Company, previously known as the Keever-Ryan Company, the name of the corporation having changed, but its identity remaining unaltered. The Ryan-Cushing Company occupied the third and fourth floors of the building owned and controlled by the defendants as trustees under the will of Maria L. Phillips. The remaining floors were occupied by other tenants.
In the rear part of the building there was a freight elevator which the plaintiff and two other employees of the Ryan-Cushing Company were using at the time of the accident. They had been carrying boxes from the fourth to the third floor by means of the elevator, and were going from the third to the fourth floor, when the elevator, failing to stop, struck the roof of the building and fell to the basement. There was evidence that the defendants made repairs on the elevator; that another tenant had the right to use the elevator on the same terms as the plaintiff's employers; and that the elevator was used by expressmen and strangers who dealt with said tenants. The only evidence bearing on the right of the Ryan-Cushing Company to use the elevator were a certain written lease, the evidence of one of the defendants, and the evidence appearing in answers to interrogatories. The written lease, which was offered in evidence subject to the plaintiff's exception, was dated May 12, 1909. The lessees were the Keever-Ryan Company, and the lessors were the persons who were then trustees of the estate. The lease covered the fourth floor of the building. The term was for three years, beginning July 1, 1909. It contained the provision that the covenants of the lessee--
‘shall be in force without demand or notice during said term and for such further time as the lessee or any person or persons claiming under the lessee shall hold the demised premises.’
The lease also contained this provision relating to the freight elevator:
‘No charge is to be made by the lessors for the lessee's use of the freight elevator in said building during such hours of such days of the year as it is customary to furnish freight elevator service in buildings of this class, * * * but the lessee agrees to use said elevator for the transportation of freight only, in common with others, at its own risk, and in such manner as not to require the attendance of any servant of the lessors.’The plaintiffs called one of the defendants, who...
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