Freeman v. Hunnewell

• Decision Date: 02 March 1895
• Citation: 163 Mass. 210,39 N.E. 1012
• Parties: FREEMAN v. HUNNEWELL et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

163 Mass. 210

39 N.E. 1012

FREEMAN v. HUNNEWELL et al.

Supreme Judicial Court of Massachusetts, Suffolk.

March 2, 1895

COUNSEL

J.A. McGeough, for plaintiff.

Clapp & Glover, for defendants.

OPINION

KNOWLTON, J.

The defendants are owners of a building five stories high, in which is a freight elevator for the use of tenants, which the defendants retain in their control and keep in repair. The rear wall of the building forms one side of the elevator well, and above the third floor it is built out into the room about 15 inches, so that the well is smaller above the second story than in the first two stories of the building. The elevator is an open platform, built of such size as to pass up and down in the upper stories, where the well is narrowed by the construction of the wall; and when the elevator is at rest at the second floor there is an open place 4.7 feet long and 15 inches wide between the platform of the elevator and the rear wall of the building, which forms one side of the well. The plaintiff, a boy 15 years of age, employed by the tenants who occupied the second and third floors of the building, had been accustomed to use the elevator daily for four months. The common way of using it was to ride up and down upon it with the freight which was carried. He was injured by falling through this open space at the second floor of the building between the platform of the elevator and the wall. His rights upon the elevator were only those of his employers, who were tenants of the defendants. When they hired the building, the elevator was in the same condition as at the time of the accident. They having hired their tenement with an elevator so constructed, the defendants did not owe them nor their employés any duty to change this construction. Woods v. Cotton Co., 134 Mass. 357; Quinn v. Perham, 151 Mass. 162, 23 N.E. 735; Moynihan v. Allyn, 162 Mass. 270, 38 N.E. 497. There was no evidence of negligence on the part of the defendants. There was no evidence of due care on the part of the plaintiff. The accident happened between 1 and 2 o'clock in the afternoon. The plaintiff knew of the existence of the hole, and must have known that there was danger of falling through it if he did not keep his feet upon the platform. There was nothing to show that he used any care to keep from falling, or that the accident happened from any cause other than his own inattention and negligence. Exceptions overruled.