Brosnan v. Koufman

• Decision Date: 27 May 1936
• Citation: Brosnan v. Koufman, 294 Mass. 495, 2 N.E.2d 441 (Mass. 1936)
• Parties: BROSNAN v. KOUFMAN.
• Court: Supreme Judicial Court of Massachusetts

294 Mass. 495

2 N.E.2d 441

BROSNAN v. KOUFMAN.

Supreme Judicial Court of Massachusetts, Suffolk.

May 27, 1936

Exceptions from Superior Court, Suffolk County; Leary, Judge.

Action of tort by Dominic A. Brosnan against Louis S. Koufman where, following the recording of a verdict for the plaintiff in the sum of $9,900, a verdict for the defendant was ordered entered pursuant to leave reserved.On plaintiff's exceptions.

Exceptions overruled.

F. R Mullin, G. I. Kellaher, and E. C. Jenney, all of Boston, for plaintiff.

S. P Sears and E. R. Langenbach, both of Boston, for defendant.

PIERCE, Justice.

This is an action of tort for personal injuries sustained by the plaintiff while upon a certain stairway in the Carney building in Boston, which collapsed while the plaintiff was passing over it.The case was tried to a jury and a verdict was returned for the plaintiff.At the close of the evidence for the plaintiff a motion was made, and denied, that a verdict be directed for the defendant.Before recording the verdict of the jury, the judge duly reserved leave to enter a verdict for the defendant.Thereafter, the defendant duly filed a motion that a verdict be entered for him.The motion was allowed, a verdict was entered for the defendant, and the case is before this court on the plaintiff's exceptions saved to the allowance of the latter motion and to the judge's refusal to admit certain evidence to the refusal of certain rulings requested and to certain portions of the charge.

At the trial there was ample evidence to warrant a finding that the plaintiff was in the exercise of due care, as well as a finding that the defendant was negligent in the maintenance of the stairway upon which the plaintiff was injured, if the defendant owed a duty to the plaintiff to exercise reasonable care to maintain the stairway in a reasonably safe condition for travel over it.It was agreed that the defendant was the lessee in control of the premises upon which the plaintiff fell.The sole question upon which the parties are at issue is as to the status of the plaintiff at the time of the injury and the consequent duty owed to him by the defendant.

Upon the evidence most favorable to the plaintiff it appeared that the Carney building was located upon a parcel of land which had a frontage on Tremont street and a rear frontage on Pemberton Square, both public highways.The entrance to the building from Tremont street led into a marble corridor which was about eight feet wide.This corridor extended to a flight of stairs which led to Pemberton Square.The building had been under the control of the defendant since 1921, and this corridor had been used for a long time by a large number of people in walking between Tremont street and Pemberton Square.The defendant had seen many persons making such use of the corridor.People coming down from the upper floors of the building in the elevator would, if they desired to leave by the Tremont street door, get off at the ground floor and walk along the corridor; if they desired to go to Pemberton Square, they would get off at the second floor since that exit to Pemberton Square was more convenient than was the exit through the corridor, at the head of which was the stairway on which the plaintiff fell when it collapsed.

The evidence showed that as one goes along the corridor from the Tremont street entrance he passes a bulletin board containing the names of the tenants of the building; that further on, at about fifteen feet from the entrance to the building, he passes three elevators; that beyond the elevators is a stand at which cigars, cigarettes and fruit are sold; that there is also a telephone booth and nearly opposite the elevators is a United States mail box; that beyond the cigar stand there is a right angle turn to the right in the corridor, then more steps, and then another sharp turn, to the left, leading to the iron stairway of seven steps which leads to Pemberton Square.The evidence warranted a finding that the plaintiff had frequently passed over the corridor in question, and at the time of his injury he had entered the building by the Tremont street entrance for the purpose of mailing letters; that he had done so by using the mail box in the corridor, and that when injured he was about to leave the premises by the Pemberton Square exit.There was evidence that there was a difference in grade between Tremont street and Pemberton Square, the latter being higher than Tremont street, and the difference was about equal to the height of the first story of the building; that a public sidewalk ran from Somerset street by the Waldorf restaurant, thence past the rear entrance to the store of Houghton & Dutton, and led to and beyond the stairway in the Carney building which was the Pemberton Square entrance to the corridor above described; that on the transom above the Tremont street door was the name ‘ Carney building,’ no name appeared on the door leading from Pemberton Square to the corridor; and that there were no signs indicating that the corridor was a private or public way.

The plaintiff asked the court to take judicial notice of 24 U.S.Sts. at Large, 569, c. 388, § 1;27 U.S.Sts. at Large, 421, c. 41(U.S.C., title 39, § 156,39 U.S.C.A. § 156) which reads: ‘ No boxes for the collection of mail matter by carriers shall be placed inside of any building except a public building, or a building which is freely open to the public during business hours'; Postal regulations of like tenor contained in a book labeled ‘ Postal Laws and Regulations, Issue of 1924’ were excluded subject to the plaintiff's exceptions.

On the foregoing facts the plaintiff contends his exceptions should be sustained because the evidence was sufficient to warrant the jury in finding: (a)‘ That the general public had been impliedly invited to make use of the corridor’ ; (b)‘ that the plaintiff was upon the premises as a matter of right’ ; (c)‘ that there was an implied invitation to the general public to enter the corridor for the purpose of using the United States mail box’ ; (d)‘ that the plaintiff was one of the class of persons whose use of the mail box was contemplated by the defendant, and to whom the defendant owed a duty to maintain his premises in a safe condition’ ; and (e)‘ that the defendant had negligently failed to keep his premises in a safe condition.’

The only fundamental question is as to whether the plaintiff, in going upon the defendant's premises, was an invitee or business visitor to whom was owed a duty of care with reference to the maintenance of the stairway which collapsed to his physical injury, or whether he was a licensee to whom no such duty was owed.Sweeny v. Old Colony & Newport Railroad Co.,10 Allen, 368, 373, 87 Am.Dec. 644.

A person may become an invitee when he is expressly invited to come on the premises, or when, from the construction or use of the building, such an invitation may be implied.In the case at bar there is no evidence, and it is not argued that there is any evidence, of an express invitation extended to the plaintiff.To recover, therefore, he must show that he was impliedly invited upon the premises by some allurement or inducement held out by the owner or person in control with intention and design.Such an invitation is not to be implied from a merely tacit assent to the use of the place in question as a public passageway.Kruntorad v. Chicago, Rock Island & Pacific R. Co.,111 Neb. 753, 756,197 N.E. 611;Conroy v. Allston Storage Warehouse, Inc.(Mass.)197 N.E. 454;Plummer v. Dill,156 Mass. 426, 427, 31 N.E. 128,32 Am.St.Rep. 463.In the case at bar an invitation was not implied simply because the building was apparently open and passersby were not forbidden by sign or otherwise to enter, such facts indicating no more than that their entrance and passage from Tremont street to Pemberton Square were tolerated, or that they were licensed to pass through.Plummer v. Dill,156 Mass. 426, 427, 31 N.E. 128,32 Am.St.Rep. 463;Stanwood v. Clancey,106 Me. 72, 75, 76, 75 A. 293,26 L.R.A.(N.S.) 1213;Garthe v. Ruppert,264 N.Y. 290, 294, 190 N.E. 643.

Persons using a way over private land for their own convenience, with the acquiescence of the owner thereof, are held in many cases to be licensees only, unless the way is so constructed or maintained as to induce people to believe it to be a public street or way.Holmes v. Drew,151 Mass....