Cronin v. Universal Carloading & Distributing Co.
Decision Date | 03 March 1965 |
Citation | 204 N.E.2d 917,348 Mass. 645 |
Parties | Francis R. CRONIN v. UNIVERSAL CARLOADING AND DISTRIBUTING CO., Inc., et al. |
Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Edward R. Langenbach, Boston, for Universal Carloading and Distributing Co., Inc.
Anthony Serra, Boston (James T. Flynn, Boston, with him) for plaintiff.
Charles F. Choate, Boston, for New York Cent. R. Co.
Before WILKINS, C. J., and SPALDING, WHITTEMORE, CUTTER and SPIEGEL, JJ.
Cronin seeks to recover against Universal Carloading and Distributing Co., Inc. (Universal) and the New York Central Railroad Company (the railroad) in separate counts for personal injuries sustained while making a 'delivery at the freight-loading platform * * * in the railroad yards.' The trial judge directed a verdict for the railroad. He denied Universal's motion for a directed verdict. The jury returned a verdict for Cronin against Universal.
The consolidated bill of exceptions presents (a) Universal's exceptions to the denial of a directed verdict for it and of various requested rulings, to rulings on evidence, and to portions of the charge, and (b) Cronin's exception to the directed verdict for the railroad. The evidence is stated in its aspect most favorable to Cronin.
On the afternoon of April 27, 1959, Cronin went to the yards to make a delivery to Universal. He backed his truck to door No. 34 and 'started to climb the ladder to get up on the platform.' There 'were two rungs on the 'ladder." Cronin 'put his foot on the first rung and was reaching for the second when he felt the rung give way.' He hit his knee and felt pain. He then observed 'that the lower rung was broken; that it was 'slit like that, and was sort of jagged and was hanging down.'' Cronin's further description of the rung is set out verbatim in the margin. 1 The freight from Cronin's truck was accepted at door No. 34, and a man took Cronin's papers for him 'to the office located at the further end of the platform.' There were in evidence receipts running to Cronin's company for certain freight, marked 'Received Universal Carloading & Dist. Co. Boston, Mass. Apr. 27, 1959, by Boston & Albany R. R. per JM.'
The 'freighthouse is just one big wideopen shed.' The 'custom was [for truckers] to take any door that was vacant,' and to deliver freight for Universal at any door. No specific doors were marked for Universal. Near door No. 60 there was a doorway to the office and 'there was a regular stairway and you go up these five * * * [or] six stairs to the level of the platform and then walk into the office and deliver your papers, but he chose to take this short-cut.' The building is 500 to 600 feet long and 'on the side of the freight shed there were about thirty doors numbered from 2 to about 60.' There 'is just one regular stairway outside of these 'ladder types' located' near door No. 60. The stairway was 'right opposite the office * * * [Cronin] was going to.'
Cronin and another driver one Shea, testified in substance, subject to Universal's exception, that they had observed over a considerable period that 'other truckers gained access to the platform' by climbing 'up these ladders if they were too far away from the stairway or if it had been snowing or raining.' Shea testified that the practice was to 'back into an open door * * * go to the head of the house, have your papers blocked, come back and put your freight on * * * trucks or in separate lots,' and have the clerk check it and sign 'your papers.' Shea said, 'generally there is a little ladder step by the doors, the average door, and you climb up on your tailboard and into the house.' The steps, usually two, are nailed 'on the side of the doors--the base of the door down near the ground' apparently to posts. The steps are 'pieces of 1"' X 4"' or 2"' X 4"' nailed across between the posts, between the doors * * * not at all places but only at some places.' They are 'wooden braces which the men use as steps to climb up.' There is 'a doorway with a regular stairway leading to it from the outside at the end of the building where the Universal office is.' No photographs appear in the record.
By a duly accepted letter of January 24, 1956, the railroad allowed Universal for a rental of $50 a month 'the use of about 1850 square feet of space adjacent to [d]oors 24 to 30 * * * for the storage, sorting and loading of New York shipments.' The permission was granted 'upon the express condition that you [Universal] will assume all responsibility and liability for loss, damage or injury to persons or property while on the premises of the [r]ailroad * * * in using or exercising the * * * permission * * * and that you agree to indemnify * * * the [r]ailroad * * * from any and all damages * * * growing out of any such loss, damage or injury * * *.'
1. Universal requested the judge to rule that Cronin was 'not entitled to recover against * * * Universal * * * because * * * [it] was not in control of the place where the accident occurred * * * [and] was not negligent.' Liability for injury in a case like this, if the injury is shown to be caused by failure to use due care to maintain premises properly, depends upon control of the offending instrumentality. See Underhill v. Shactman, 337 Mass. 730, 733, 151 N.E.2d 287.
The evidence indicated that Universal had permission to use 1,850 square feet of storage space adjacent to doors Nos. 24 to 30. This accident took place near door No. 34. There was no evidence which would warrant the jury in finding that Universal had, or actually exercised (Boronskis v. Texas Co., 344 Mass. 477, 480, 183 N.E.2d 127), control of the exterior of the building below the platform at door No. 34 or of any adjacent land, although Universal and its customers were permitted to use this area. 2 By the exchange of letters Universal did not assume any obligation to maintain any space except, perhaps, the 1,850 square feet which it was to use. Cf. Brazinskos v. A. S. Fawcett, Inc., 318 Mass. 263, 265, 61 N.E.2d 105. Cf. also Laskowski v. Manning, 325 Mass. 393, 91 N.E.2d 231. Instead, the record indicates that the railroad controlled the yard and permitted occupation of portions of the freight buildings by various tenants apparently engaged in some type of freight operations, likely to contribute to the railroad's own freight business. The names of some of these tenants (e. g. Texas Freight, Westland Transportation, Western Carloading), as well as Shea's testimony, suggest that these tenants were, in part at least, freight gatherers or forwarders. See Judson Freight Forwarding Co. v. Commonwealth, 242 Mass. 47, 50-51, 136 N.E. 375, 27 A.L.R. 1131. In such circumstances, the railroad's position seems to have been much like that of the owner of the shopping center considered in Underhill v. Shactman, 337 Mass. 730, 733-734, 151 N.E.2d 287, in that the railroad rented to tenants parts of its general storage space, and perhaps also offices, while permitting general use of some land, parking areas, and common stairs, passageways, and platforms. See Murphy v. Alpine Press, Inc., 291 Mass. 239, 240-241, 196 N.E. 841. See also Peay v. Reidy, 321 Mass. 455, 458-460, 73 N.E.2d 737; Summering v. Berger Realty, Inc., 344 Mass. 38, 41, 181 N.E.2d 348; Restatement: Torts, § 360.
Since there is no affirmative evidence of any negligent act or omission (contributing to Cronin's injury) by or in behalf of Universal, or of any control by Universal of the accident area, the ruling (already quoted) requested by Universal, and also its motion for a directed verdict, should have been granted. It is not necessary to discuss Universal's other exceptions.
2. We think that the description of the railroad as lessee in the heading of the rental letter, as well as common knowledge in the community, established that the railroad was the operating lessee of the Boston & Albany's railroad properties. See St.1900, c. 468; Boston & Albany R. Co. v. New York Cent. R. Co., 256 Mass. 600, 605, 153 N.E. 19. Despite somewhat meager evidence concerning the operation, maintenance, and repair of the yard and the freight premises, the jury might reasonably have inferred that the railroad (for its own benefit as well as that of its tenants) extended an invitation to persons like Cronin delivering freight to the railroad's tenants to use those parts of the yard which appeared reasonably available for their use. See Underhill v. Shactman, 337 Mass. 730, 733-734, ...
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