Lally v. A.W. Perry, Inc.

• Decision Date: 21 December 1931
• Parties: LALLY v. A. W. PERRY, Inc.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

277 Mass. 463

179 N.E. 155

LALLY

v.A. W. PERRY, Inc.

Supreme Judicial Court of Massachusetts, Suffolk.

Dec. 21, 1931.

Exceptions from Superior Court, Suffolk County; Burns, Judge.

Action by Margaret A. Lally, administratrix, against A. W. Perry, Inc. After verdicts for defendant upon counts for conscious suffering and for plaintiff upon counts for death, defendant brings exceptions.

Sustained, and judgment directed for defendant.

E. D. Gallagher and D. J. Gallagher, both of Boston, for plaintiff.

G. B. Rowell and C. F. Albert, both of Boston, for defendant.

WAIT, J.

The defendant was in control of buildings numbered 97 Summer street, 24 Kingston street and 116 Bedford street, in Boston, which through the removal of inside walls, practically constituted and were used as one building. Tenants were served by passenger and freight elevators which were in the control of the defendant. One of the freight elevators opened through the wall of 116 Bedford street upon a passageway running from Kingston street. The opening was at the height of the tailboard of a truck above the level of the passageway. An iron plate extended from the outer face of the wall to the elevator shaft. Witnesses varied in stating its width from one foot to four feet. The plaintiff's intestate, Lally, in climbing up to this platform, placed his hands on the sides of the opening, put his right foot on the iron platform, caught his left foot in the uneven and broken edge of the iron which had become raised above the brick on which it was designed to rest, and fell into the elevator well, receiving injuries from which he died. After verdicts for the defendant upon counts for conscious suffering, and for the plaintiff upon counts for the death, the case is before us upon exceptions of the defendant to the refusal of the trial judge to direct verdicts in its favor, to his refusal to give certain requests for instructions, to rulings with regard to evidence and to improper argument. The declaration did not charge gross negligence nor wilful and wanton conduct; and no evidence of either appears.

In addition to what has been stated, there was evidence which would support findings that Lally, driver of a truck of the American Express Company, entered the alleyway from Kingston street and parked his truck near the elevator opening in a usual place. He had parcels to deliver to five tenants at 116 Bedford street and 24 Kingston street. He alighted, walked to the elevator opening, found the gates open, and was getting up on the platform as described, when he caught his foot and fell. The wall was dark. He was familiar with the place. He had called there two or three times a week for a considerable period, and, in getting up on the platform, he was doing as he and many others were accustomed to do. The gate was up, which, if it was working properly, indicated that the elevator was at the landing. Whether he was in the exercise of due care was, we think, properly for the jury. Wright v. Perry, 188 Mass. 268, 74 N. E. 328. There was evidence that the gate of the elevator was not working properly, and that the iron platform was not reasonably safe for use; that complainants had been made to the janitor in charge for the defendant, and that promises to remedy the troubles had been made. There also was testimony that in the preceding March official inspection had shown the gate and platform to be in good condition. The president of the defendant testified that they had never been out of repair. This would support findings that the premises were in good condition when they were leased, years before, to the various tenants, and free from the defects existing at the time of this injury; and that there had been negligence in failing to keep the gate and platform in the condition of the time of letting and reasonably safe for the use for which they were intended.

[5][6] The serious question presented is whether the defendant owed any duty to the intestate other than to refrain from gross negligence or wilful and wanton conduct producing injury to him. Since neither was charged or proved, the liability, if any, depended upon the existence of a duty owed to him to use ordinary care to keep the elevator and its approaches in the building reasonably safe and convenient for his use. Under our decisions no such duty was owed by the defendant if the intestate stood only in the position of a mere licensee upon the premises. Unless he was invited, expressly or impliedly, by the landlord to come upon the premises, or was there under a right of a tenant to his presence, he was in the position of a mere licensee. Pope v. Willow Garages, Inc. (Mass.) 174 N. E. 727;Murphy v. Huntley, 251 Mass. 555, 146 N. E. 710, 37 A. L. R. 1447;Creeden v. Boston & Maine Railroad, 193 Mass. 280, 79 N. E. 344,9 Ann. Cas. 1121. The uncontradicted evidence showed that there were five tenants in the building served by the elevator with whom he had business to transact. Two of these held written leases. Three were tenants at will. All had been in the building for years. The written leases made no specific reference to the freight elevators. The lease to Crosby Bros. & Co. provided: ‘No charge shall be made by the...