Handyside v. Powers

• Decision Date: 20 October 1887
• Parties: HANDYSIDE v. POWERS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

145 Mass. 123

13 N.E. 462

HANDYSIDE v. POWERS.

Supreme Judicial Court of Massachusetts, Hampden.

October 20, 1887

COUNSEL

J.B. Carroll, for plaintiff.

The plaintiff had no knowledge that an elevator was in the building. He felt for the floor with his foot, and, in view of all the circumstances, there was evidence of due care to go to the jury. Gaynor v. Railway Co., 100 Mass 208, 212; Gahagan v. Railroad Co., 1 Allen, 187; Warren v. Railroad Co., 8 Allen, 227; Davis v Congregational Soc., 129 Mass. 367; Dewire v Bailey, 131 Mass. 169. In Taylor v. Manufacturing Co., 140 Mass. 150, 3 N.E. 21, the plaintiff knew the danger, was walking quickly, and did not seek to avoid it by using either hands or feet. The plaintiff was rightfully on the premises, and the defendant owed him the duty of keeping the premises safe. Gilbert v. Nagle, 118 Mass. 278; Parker v. Barnard, 135 Mass. 116; Indermaur v. Dames, L.R. 1 C.P. 274. It was at least a question of fact whether the plaintiff had an implied license to do what he did. Gilbert v. Nagle, 118 Mass. 278. The plaintiff was not a mere intruder, as in Severy v. Nickerson, 120 Mass. 306. It was necessary for the plaintiff to go over his hall to get to the upper story, and, in the performance of his work, he was obliged to see about the water and pipes on the floor from which he fell. The control of the hall-way and the elevator remained in the defendant, by the terms of the lease. The tenant is liable only when he has the entire control. Stewart v. Putnam, 127 Mass. 403; Kirby v. Market Ass'n, 14 Gray, 249; Shipley v. Fifty Associates, 101 Mass. 251; Leonard v. Storer, 115 Mass. 86; Homan v. Stanley, 66 Pa.St. 464. Where a portion only of the building is leased, and the tenant has the right of passage over halls and stairways in common with others, there is no such leasing as will exonerate the landlord from all responsibility. Looney v. McLean, 129 Mass. 33; Readman v. Conway, 126 Mass. 374; Milford v. Holbrook, 9 Allen, 17.

At the time the lease was made, the statute was in force requiring safeguards to elevator openings; and at this time the elevator was not properly protected, and the defendant is liable for thus authorizing the continuance of the danger. Pub.St. c. 104, § 14, as amended by Acts 1882, c. 208; Gandy v. Jubber, 5 Best & S. 79; Dalay v. Rice, 12 N.E. 841; Saltonstall v. Banker, 8 Gray, 195; Jackman v. Arlington Mills, 137 Mass. 277; The King v. Pedley, 3 Nev. & Man. 627. It was the duty of the owner to supply the safety appliances. The analogies of the statute, at least, make it apply to owner equally with tenant. Pub.St. c. 104, §§ 4-7, 11, 22. The elevator was in use when the lease was given, and the safety appliances were never in use, and the jury had a right to pass on the question whether, in view of all circumstances, the defendant did not contemplate the use to which the lessee was to put the elevator. Larue v. Hotel Co., 116 Mass. 67. The statute applies to all elevators, whether in use or not, and the evidence shows that this was fitted for use on this floor. The fact that the negligence of the tenant contributed, does not excuse the defendant. It was a result which should have been guarded against by complying with the statute. At common law, the defendant would be liable for doing that from which injury might reasonably have been expected, and from which injury resulted. Lane v. Atlantic Works, 111 Mass. 136; Hughes v. Macfie, 2 Hurl. & C. 744; Burrows v. Gas Co., L.R. 5 Exch. 67, 71; Illidge v. Goodwin, 5 Car. & P. 190. The injury happened from acts which the defendant ought to have apprehended and guarded against. Gray v. Gas-Light Co., 114 Mass. 149; Peverly v. Boston, 136 Mass. 366; Bartlett v. Gas-Light Co., 117 Mass. 533; Burt v. Boston, 122 Mass. 223; Jager v. Adams, 123 Mass. 26.

Timothy M. Brown, for defendant.

The plaintiff failed to show that he was in the exercise of ordinary care when he received the injuries for which he claims damages. The general knowledge and experience of men at once condemn as careless the conduct of a man who opens a door upon which there is no sign or mark indicating what is within, in the hall of a building he is entirely unacquainted with, and finding it "totally dark" before him, so that "he can't see anything," steps off into the "total darkness." He did not even try to locate the closet he thought was on the third story by the one in the story above it. Murphy v. Deane, 101 Mass. 455; Chaffee v. Railroad Corp., 104 Mass. 108; Hinckley v. Railroad Co., 120 Mass. 257; Kent v. Todd, 144 Mass. 479, 11 N.E. 734. The plaintiff was a mere intruder. The defendant owed him no duty, and was under no obligation to make the place safe for him. Sweeny v. Railroad Co., 10 Allen, 368; Zoebisch v. Tarbell, 10 Allen, 385; Severy v. Nickerson, 120 Mass. 306. No negligence can be attributed to the defendant because his tenant procured a key that fitted the lock without his knowledge or consent, or that of his agent, and unlocked, and left unlocked, the door. Kendall v. City of Boston, 118 Mass. 234; Tully v. Railroad Co., 134 Mass. 499; Sullivan v. Scripture, 3 Allen, 564. If anybody is liable to the plaintiff it is the tenant, King, who occupied the premises, and surreptitiously obtained a key that would unlock the door, and carelessly left it unlocked. While the defendant's lease to King gave him the use of the elevator "in common with other tenants," no other tenant or person had been given any right to use it. Leonard v. Storer, 115 Mass. 86; Boston v. Gray, 144 Mass. 53, 10 N.E. 509; Lowell v. Spaulding, 4 Cush. 277; Oakham v. Holbrook, 11 Cush. 299; Stewart v. Putnam, 127 Mass. 403; Boston v. Worthington, 10 Gray, 496; Saltonstall v. Banker, 8 Gray, 195; Mellen v. Morrill, 126 Mass. 545.

OPINION

DEVENS J.

Without considering whether the plaintiff was an intruder or licensee in entering on the premises, we do not find that there was evidence in the case of neglect on the part of the defendant. The door to the elevator had been provided with a lock, had been locked, and the key deposited in defendant's office. This was the only key known by defendant or his agent to exist, and it was found in its place in defendant's office after the accident. There was evidence that a key had been procured by King, and used, but without the consent or knowledge of defendant or his agent; and that the neglect of King in unlocking the door, and in leaving it unlocked, had been the cause of the injury. But the act of King in obtaining a key without knowledge...