Carroll v. Intercolonial Club of Boston

• Decision Date: 05 January 1923
• Parties: CARROLL v. INTERCOLONIAL CLUB OF BOSTON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

243 Mass. 380

137 N.E. 656

CARROLL

v.INTERCOLONIAL CLUB OF BOSTON.

Supreme Judicial Court of Massachusetts, Suffolk.

Jan. 5, 1923.

Report from Superior Court, Suffolk County; James H. Sisk, Judge.

Action of tort by Abraham Carroll against the Intercolonial Club of Boston for personal injuries sustained in a lodge room rented by the lodge from defendant. Reported from the superior court after a directed verdict for defendant, on the stipulation that, if such ruling and direction solely in so far as defendant's simple or gross negligence is concerned, was right, judgment is to be entered on the verdict, but that, if such question ought to have been submitted to the jury on evidence admitted, or on such evidence with that wrongfully excluded, final judgment is to be entered for plaintiff. Judgment for defendant.

The action was tried before a justice of the superior court, who reserved it for report, but died without making such report, and was thereafter reported by another justice. It is stated in the report that the ruling on the question of negligence is the only question to be open on the report, that no question of plaintiff's contributory negligence, assumption of risk, on other conduct is to be open, and that no question of agency, or that defendant may have been a charitable corporation, is open.

Harry Silverman, James M. Hoy, and John M. Russell, all of Boston, for plaintiff.

H. S. Avery, of Boston, for defendant.

DE COURCY, J.

On the evidence submitted by the plaintiff, the following facts could be found: During the negotiations for engaging a hall, between Silverman, an officer of Liberty Lodge, No. 126, Knights of Pythias, and one Kickham, the janitor or superintendent of the defendant's building, there was a discussion as to a suitable place for keeping a certain box or casket, 6 feet long and 2 feet wide, the contents of which weighed about 10 pounds. After some other places had been considered and rejected as unsuitable, the superintendent took Silverman into a room known as Brunswick Hall, removed a trapdoor or cover, and showed him an opening in the floor, substantially the length and width of said casket, and apparently the same depth. This hall was later engaged by the lodge for its meetings. When the paraphernalia was moved in, Isaac Golden, who had charge thereof, found that the hole was not deep enough by about an inch to contain the casket and have the trapdoor put back on a level with the rest of the floor. Across the bottom of the hole there were five or six pieces of timber, referred to in the evidence variously as ‘beams,’ ‘boards,’ ‘slats' and ‘straps.’ Golden borrowed from the superintendent a saw, chisel and hammer; he cut off and removed these crosspieces, placed the casket in the hole, and put the trapdoor in place. This work was done in the basence of the superintendent; but on Golden's testimony it could be found that Kickham permitted it. The casket was placed in the hole, and was not again moved until the night of the meeting. Then the plaintiff, who was a member of the lodge, was assisting in replacing it when in some unexplained way he got into the hole, fell through the plaster board at the...