Gordon v. Cummings

• Decision Date: 26 November 1890
• Citation: 152 Mass. 513,25 N.E. 978
• Parties: GORDON v. CUMMINGS et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

152 Mass. 513

25 N.E. 978

GORDON v. CUMMINGS et al.

Supreme Judicial Court of Massachusetts, Suffolk.

November 26, 1890

COUNSEL

John D. Long, for plaintiff.

William A. Gaston, for defendants.

OPINION

DEVENS, J.

In order that the plaintiff should maintain his action, in which he relied solely on the common-law counts of his declaration it was necessary that he should offer evidence which would have justified the jury in finding that he entered or attempted to enter upon the defendants' premises by some invitation or authority from them, that he was injured in so doing by some want of due care, for which they are responsible in the construction or the management of the approach to the entrance he was authorized to use, by means of which neglect he was injured, and that he was himself in the exercise of due care. It is not necessary to decide that upon the evidence offered, the jury should have found in the plaintiff's favor on these three propositions. If it was sufficient, if believed, to have authorized them so to do, the case should have been submitted to them. The plaintiff was a United States letter-carrier. The place which he sought to enter was known as "No. 619 Albany St." It was always open, having no door to close it. Ascending from its threshold, which itself constituted the first step, was a flight of four or five steps to a door which opened upon an entry or hallway in which were three or four boxes placed there for the accommodation of the plaintiff by the tenants of the defendants who occupied the various stories of the building for the reception of their mail matter. Among the rest was a box for that purpose for the mail matter of Mellish, Byfield & Co., who were the tenants at will of the defendants of the third and fourth floors of the building, and for whom the plaintiff had a letter, which he was seeking to deliver by placing it in their box. The hallway into which the plaintiff sought to enter had a flight of stairs which led to the next story. The defendants owned the building, and there was nothing which tended to show that this hallway was leased, or that they did not have the entire management of it. A watchman, also employed by them, had the general charge of the building during the night, taking control of it from 6 in the evening until 6 in the morning. How long these letter-boxes had been in the entry, or how often the plaintiff had visited them on his duty as a letter-carrier, does not fully appear by the report, but their existence in so public a place, which was, so far as appears, entirely in the control of the defendants, could not have been without their knowledge, and, whatever the rights of the tenants or their servants may have been in the entry, afforded some evidence that the boxes were there by their authority and permission, and that the letter-carrier, in visiting them in the performance of his duty, came there by the implied invitation of the defendants, for the convenience of their tenants, or at least that he was authorized to believe that he came there by such an invitation. While the building was intended for workshops, and while there were no offices in it, it was still one where, to some extent, at least, the tenants received letters, and there was a preparation and adaptation of the entry or hallway for the plaintiff's use which might well lead him to believe that he might safely enter, in the performance of his duty. Parker v. Barnard, 135 Mass. 116; Sweeny v. Railroad Co., 10 Allen, 368; Learoyd v. Godfrey, 138 Mass. 315; Larue v. Hotel Co., 116 Mass. 67.

If the plaintiff was authorized and induced to enter this hallway there was also evidence of a want of due care in the management of the elevator well down which the plaintiff fell. It opened directly upon the street about 20 inches back from the line of the street by a door-way framed in granite, its threshold being some 8 inches high from the flagging of the street. Separated from this elevator door-way by a stone post one foot wide was the entrance of about the same dimensions and construction which led up to the hallway of which we have already spoken. Its threshold was at the same height as that of the elevator entrance, and was a continuation of it, but was not quite so wide. The elevator entrance was provided with an up and down sliding-door, which, when down, closed the entrance, and with a chain, which when hooked, hung looselyacross it. The evening when the accident occurred the elevator door was opened, and the chain...