Howlett v. Dorchester Trust Co.

• Decision Date: 30 June 1926
• Citation: 152 N.E. 895,256 Mass. 544
• Parties: HOWLETT v. DORCHESTER TRUST CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

256 Mass. 544

152 N.E. 895

HOWLETT

v.DORCHESTER TRUST CO.

Supreme Judicial Court of Massachusetts, Suffolk.

June 30, 1926.

Report from Superior Court, Suffolk County; C. T. Callahan, Judge.

Action of tort by Raymond H. Howlett, per prochein ami, against the Dorchester Trust Company to recover for personal injury to plaintiff in defendant's banking room. Verdict for plaintiff, and case reported. Verdict to stand.

W. Flaherty, of Boston (B. A. Levy, of Boston, of counsel), for plaintiff.

M. M. Johnson, of Boston, for defendant.

WAIT, J.

On November 17, 1919, the plaintiff, then two years and three months old, was taken by his mother to the banking rooms of the defendant, whither she went to make deposits for herself and for members of her family in a ‘Christmas Club,’ and, in addition, a deposit for the plaintiff in an account which stood in her name as trustee for him. He was taken because the mother so wished, and because there was no one at home with whom she could leave him while she attended to this business. He was placed by her upon a smooth mahoganytopped bench, provided by the defendant for use by those coming to the premises, which stood from eight inches to two feet away from a vapor heating radiator, then heated to at least 212 degrees Fahrenheit, and not guarded in any way from contact with any one upon the bench. He was seated by his mother with his legs hanging down in front of the bench, away from the radiator, and was left there while she attended to the deposits at a desk not over twenty-five feet away and in full sight. While she was gone and after she had made her other deposits, but before she had made any deposit for him, in some unexplained way he came off the bench and in contact with the radiator. He suffered burns for which he brings this action for damages.

At the trial the judge refused to take the case from the jury, and the case is before us upon his report, on the questions of negligence of the defendant, and due care and contributory negligence of the plaintiff.

The mother testified that she had taken him to the rooms before and had seen the benches (of which there were several in various parts of the room but no others close to a radiator) used by other people and by children; that she knew that radiators were supposed to be hot, but did not notice whether or not any heat was coming from this radiator; that she had never been warned not to use that bench or that harm might come from the radiator; that there was no one else on the bench; that persons were moving about in the rooms; and that she kept looking back to see that he was all right. There was no evidence that the defendant knew anything of the situation which she did not know, or in the exercise of reasonable care could not know.

Taking, first, the question of the defendant's negligence. It was not an insurer, neither did it owe to any one the high degree of care owed by a carrier to a passenger. At the most it owed only the duty to furnish a reasonable safe place for the use of those invited to its premises, and to refrain from willful and wanton negligence toward those licensed to be upon them. Plummer v. Dill, 156 Mass. 426, 31 N. E. 128,32 Am. St. Rep. 463;McDermott v. Sallaway, 198 Mass. 517, 85 N. E. 422,21 L. R. A. (N. S.) 456;Norton v. Hudner, 213 Mass....