Dickie v. Davis

• Decision Date: 27 February 1914
• Citation: 104 N.E. 567,217 Mass. 25
• Parties: DICKIE v. DAVIS et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

217 Mass. 25

104 N.E. 567

DICKIE v. DAVIS et al.

Supreme Judicial Court of Massachusetts, Suffolk.

February 27, 1914

COUNSEL

Geo. S Littlefield, and Clavin S. Tilden, both of Boston, for plaintiff.

Albin L. Richards, of Boston, for defendant Davis.

Walter I. Badger, Wm. Harold Hitchcock, and Chester M. Pratt, all of Boston, for defendants Greenleaf and Knight.

OPINION

BRALEY J.

The presiding judge upon the facts stated in the opening for the plaintiff ruled that if proved the action could not be maintained against either of the defendants, and having ordered a verdict reported the case to this court. The defendant Davis and the defendants Greenleaf and Knight are respectively the owner and lessees of the hotel property, and it is unquestioned that the lessees were in possession and control when they made the contract with the plaintiff's employer for the construction of a sun parlor on the roof. The pent house where the plaintiff was injured had not been designated or appropriated for the use of guests or other persons lawfully on the premises, and there being no evidence as in Learoyd v. Godfrey, 138 Mass. 315, and Dalay v. Savage, 145 Mass. 38, 12 N.E. 841, 1 Am St. Rep. 429, that when let it was in a dangerous condition either from defective construction or from neglect, the plaintiff has no cause of action against her, even if she consented to the addition. Quinn v. Crimmings, 171 Mass. 255, 256, 50 N.E. 624, 42 L. R. A. 101, 68 Am. St. Rep. 420; Coman v. Alles, 198 Mass. 99, 103, 83 N.E. 1097, 14 L. R. A. (N. S.) 950.

We shall now refer to the lessees as the defendants. The jury could properly find, that the workmen of the contractor, in going to and from the work, and while in its performance were upon the premises by the invitation and for the benefit of the defendants, with the right to have the premises kept in a reasonably safe condition. Wright v. Perry, 188 Mass. 268, 74 N.E. 328; Plummer v. Dill, 156 Mass. 426, 31 N.E. 128, 32 Am. St. Rep. 463. 'The gist of the liability consists in the fact that the person injured did not act merely for his own convenience and pleasure, and from motives to which no act or sign of the owner or occupant contributed, but that he entered the premises because he was led to believe that they were intended to be used by visitors or passengers, and that such use not only was acquiesced in by the owner or person in possession and control of the premises, but that it was in accordance with the intention and design with which the way or place was adapted and prepared or allowed to be used. The true distinction is this: A mere passive acquiescence by an owner or occupier in a certain use of his land by others involves no liability, but if he directly or by implication induces persons to enter on and pass over his premises, he thereby assumes an obligation that they are in a safe condition suitable for such use. * * *' Sweeney v. Old Colony & Newport Railroad, 10 Allen, 368, 373, 374 (87 Am. Dec. 644). But the defendants' obligation did not extend to...