Brown v. Wong Gow Sue

• Citation: 354 Mass. 646,241 N.E.2d 919
• Parties: Perley B. BROWN v. WONG GOW SUE et al., Trustees.
• Decision Date: 01 November 1968
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 919

241 N.E.2d 919

354 Mass. 646

Perley B. BROWN v. WONG GOW SUE et al., Trustees.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Oct. 8, 1968.

Decided Nov. 1, 1968.

Philander S. Ratzkoff, Boston, for Wong Gow Sue and others, trustees.

Thomas D. Burns, Boston, for Consolidated Elevator Co.

Edwin R. Trafton, Boston, for Perley B. Brown.

Before WILKINS, C.J., and SPALDING, WHITTEMORE, CUTTER, SPIEGEL and REARDON, JJ.

SPIEGEL, Justice.

This is an action of tort for personal injuries sustained by the plaintiff when his foot was caught between the floor of an elevator car and the hoistway wall of a freight elevator on the defendants' premises. Consolidated Elevator Co., Inc. (Consolidated), under contract with the defendants to service and inspect the elevator, was joined as a third party defendant. The jury found for the plaintiff in the sum of $6,000 and for the defendants as third party plaintiffs in the sum of $7.30. The defendants took exceptions to the denial of their motion to strike certain evidence, to the denial of their motion for a directed verdict ¹ and, as third party plaintiffs, to the judge's instructions to the jury.

DEFENDANTS' EXCEPTIONS.

The following is a summary of the evidence pertinent to the defendants' exceptions. The defendants were the owners of a five story mercantile building located in Boston. A hoistway and freight elevator were provided for the use of the tenants of the building. The car of the elevator was enclosed on the right side and the rear by walls and the left side was open to the hoistway wall. Access from the car to the basement and the second floor of the building was from the left side of the car. There was no opening in the hoistway shaft into the building at street level. Entrance to the car at street level was from the front, directly from the sidewalk.

The left wall of the hoistway which was exposed when the car was at street level was vertical except for a 'ledge of lintel' which ran along the wall parallel to the floor of the car. At the bottom of the lintel the wall recessed horizontally about four inches and then continued down vertically to the top of the basement doors. When the car was at street level the bottom of the lintel was approximately eight inches above the floor of the car, causing a space of about four and one-half inches between the left side edge of the car floor and the hoistway wall. When the car was raised so that its floor was even with or above the lintel, the space was only about one half of an inch wide. The elevator car was illuminated by a small light fixture on the extreme left corner of the car. A 'shipping rope' by which the car could be raised or lowered was located near the rear wall of the car.

At the time of the accident, Cathay House, Inc. occupied the basement and the first and second floors of the building under two written leases which granted the lessee 'the right to use in common with the other tenants entitled thereto the freight elevator.' The plaintiff was a delivery man employed by the Far East Trading Co. On the day of the accident he was delivering seventeen 100 pound bags of rice to Cathay House, Inc. When he arrived at the service entrance, 'the floor of the elevator was about 'three, four or five inches' below the street level.' He loaded the rice onto the elevator car, leaving one to two feet along the left side for himself. The car 'sagged' an additional four or five inches with the load of rice. The plaintiff entered the car, pulled the shipping rope and turned to the left, looking up in order to face where he would be getting off of the car. As the car moved upward, his right foot became caught in the space between the floor of the car and the hoistway wall. On reversal of the movement of the car, his foot came out with the top of his shoe torn off.

1. On cross-examination, the plaintiff was asked whether he knew 'that you had to keep every part of your body so that it didn't protrude or go over the edge of the elevator floor.' Although instructed by the judge to give a '(y)es or no' answer, the plaintiff responded that '(w)hen you're standing against the wall and if part of my feet touched the base of the wall at the bottom of the elevator, I would have known maybe * * * I would have known maybe I was leaning one way or the other. At the time it happened I was away from the wall, my body was away from the wall safe, and unconsciously, my feet overlapped.' The defendants assert that their motion to strike the plaintiff's answer as unresponsive should have been granted. They press the exception only as far as it is germane to the determination of the propriety of the judge's denial of their motion for a directed verdict.

Assuming that the answer was unresponsive, the judge was not required to strike it if it was relevant. Lewis v. Coupe, 200 Mass. 182, 187, 85 N.E. 1053; Nelson v. Hamlin, 258 Mass. 331, 341, 155 N.E. 18. The plaintiff's answer was relevant to the issue of his contributory negligence and it was within the discretion of the judge to allow it to stand.

2. The defendants contend that their motion for a directed verdict was incorrectly denied because there was no...