Chalfen v. Kraft

• Decision Date: 03 March 1949
• Citation: 84 N.E.2d 454,324 Mass. 1
• Parties: CHALFEN v. KRAFT.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

324 Mass. 1

84 N.E.2d 454

CHALFEN

v.KRAFT.

Supreme Judicial Court of Massachusetts, Suffolk.

March 3, 1949.

Exceptions from Superior Court, Suffolk County; D. D. Dillon, Judge.

Action of tort for personal injuries by Rosaline Chalfen against Barnet Kraft, trustee. A verdict was directed for defendant and plaintiff brings exceptions.

Exception sustained.

Before QUA, C. J., and LUMMUS, DOLAN, WILKINS, and WILLIAMS, JJ.

Harry Pollack and S. Mazer, both of Boston, for plaintiff.

T. H. Mahony, of Boston, and S. Leader, of Chelsea, for defendant.

WILKINS, Justice.

This action of tort is in two counts, both of which allege that the plaintiff was rightfully on the premises numbered 198-200 Cherry Street, Chelsea, which were owned and controlled by the defendant, and that she was burned by reason of a fire in the building. Count 1 alleges that her injuries were caused by the defendant's negligence in ‘superintendence, custody, maintenance, supervision, and control’ of the building. Count 2 alleges that her injuries resulted from the defendant's negligence in ‘permitting said building to be in a dangerous, defective, and unsafe condition.’ The judge directed a verdict for the defendant on each county upon the plaintiff's opening statement, and the plaintiff excepted.

The anticipated evidence outlined in the opening may be summarized as follows: The plaintiff, a ‘baby sitter’ in the apartment of a Mrs. Simons, saw smoke coming through the door. She opened the door into the hallway, which she observed was full of smoke. She left with the baby, whom she gave to a man who was a tenant upstairs. She lost sight of this man, and in descending to the street suffered burns. The defendant is the owner of the building, a three-story brick structure, in the cellar of which was a boiler. The defendant ‘had a janitor whose duty it was to keep the boiler going and to take care of the heating equipment.’ The ‘boiler was pretty close to the stairway leading down from the entrance. You come into a hallway and go down a half flight of stairs, turn around going down, and as you come down the stairs the boiler is just a short distance to the left and [there was] an opening under the stairway,’ where were kept rubbish and papers, constituting a fire hazard. That was a condition of which the defendant knew or should have known if he had made reasonable inspection of the premises. The fire started from a cigarette thrown near that collection of paper. Neither the defendant nor his janitor had taken any steps to see to it that the stairway was clear and did not accumulate paper. Because of neglect in permitting this condition amounting to a fire hazard to exist over a period of time, this fire started. The condition was such that a fire could easily start and did start.

This colloquy then occurred:

‘THE JUDGE: Have you anything to add to your opening?

‘COUNSEL FOR THE PLAINTIFF: No.

‘THE JUDGE: Have you got a motion:

‘COUNSEL FOR THE DEFENDANT: Yes.

‘COUNSEL FOR THE PLAINTIFF: May I add this. The plaintiff expects to prove that under the stairway there was an accumulation of paper.

‘THE JUDGE: You said that already, and that it was a fire hazard, but you haven't said a word that the fire was started because of that fire hazard.

‘COUNSEL FOR THE PLAINTIFF: I am saying that, and I thought I said it. When an inspection was made the following morning after the fire--

‘THE JUDGE: I don't care what they found the next morning. It was what they found before the fire.

‘COUNSEL FOR THE PLAINTIFF: I think the next morning's evidence goes to show what the condition was before the fire, to establish cause and effect.

‘THE JUDGE: Do you know how long a lighted cigarette lasts when it is burning?

‘COUNSEL FOR THE PLAINTIFF: I know, but I will have testimony from the fire department they found the remains of a lighted cigarette near the paper; that the paper had been pulled out from under the stairs; that the fire started under the stairway, and we expect to prove that.

‘THE JUDGE: All right, I will direct a verdict just the same.'

We assume that the facts, both specific and general, stated in the opening were true and would have been substantiated by testimony. Grace v. Jordan Marsh Co., 317 Mass. 632, 59 N.E.2D 283. The judge at first was of the opinion that counsel for the plaintiff had not stated that the fire started because of the hazard described. If there was any deficiency in the opening in this respect, the omission was supplied by the later statements of counsel for the plaintiff. See Mulvaney v. Worcester, 293 Mass. 32, 33, 199 N.E. 405. Whether supposed lack of causation was the reason for the judge's ultimate action we need not inquire.

The defendant contends that it did not appear that he, although the owner, was in control of the area under the stairway. We cannot accede. The opening mentions two tenants only, the plaintiff's employer and a man ‘upstairs.’ On the other hand, the defendant hired a janitor ‘whose duty it was to keep the boiler going and to take...