Mabardy v. Campo

• Decision Date: 04 June 1962
• Citation: 344 Mass. 459,183 N.E.2d 116
• Parties: Sobhy E. MABARDY v. Rocco V. CAMPO et al. Sobhy E. MABARDY v. Anthony ALVING et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 116

183 N.E.2d 116

344 Mass. 459

Sobhy E. MABARDY v. Rocco V. CAMPO et al.

Sobhy E. MABARDY v. Anthony ALVING et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Feb. 6, 1962.

Decided June 4, 1962.

Elliot E. Rosenberg, Boston, for plaintiff.

Charles W. Barrett, Jr., Boston, for defendants Rocco V. Campo and others.

James D. Casey, Boston, for defendants Anthony Alving and others.

Before WILKINS, C. J., and SPALDING, WHITTEMORE, CUTTER and KIRK, JJ.

SPALDING, Justice.

These are two actions of tort. In one, the plaintiff seeks to recover against R. V. Campo, V. Campo, and Joseph Civiello, doing business as Pilgrim Furniture Mfg. Co., hereinafter called the tenants. In the other, recovery is sought against Anthony Alving, Nathan Rozen, and Arthur J. McGonagle, hereinafter called the landlords.

The evidence was as follows: The landlords were the owners of a building located at 16 Harcourt Street, Boston. The tenants occupied a portion of the third floor of that building. For approximately ten years the plaintiff had from time to time come to 16 Harcourt Street, at the tenants' request, for the purpose of removing sawdust from their premises. The first floor of the building was used as a garage for motor vehicles. Access to the third floor was by means of a stairway or by elevator. The usual method of removing sawdust was for the plaintiff to drive his truck through the garage onto the elevator, which would lift the truck to the third floor where it would be loaded. But on the date of the accident, and 'not less than 10 days and perhaps more prior thereto,' the elevator was inoperative. While the elevator was being repaired, the tenants 'rigged up' a temporary chute from a third floor balcony down a well to the first floor so that sawdust could be dropped from the third to the first floor. The chute consisted of 'a wooden box open at [the] top and bottom, from which hung a canvas tube. The four corners of the box, two top and two bottom, were placed against the outer side of the railing ending the balcony and four metal furniture clamps of a type normally used by * * * [the tenants] in * * * [their] business were used to hold the box to the railing * * *. The clamps were of a type which were hand tightened by a screw device. A long piece of rope was then passed around the box and tied to the four clamps so that if one loosened it would not fall.' J. V. Campo, an employee of the tenants, testified 'that he made sure that the ropes were well tied, and the clamps were well tightened. The box and chute were in position for at least a week and the witness used to check it and its fastenings. He did not do so on the day of the accident, or for some days before.' Other tenants on the third floor made use of the passageway adjoining the well.

On the day of the accident, the plaintiff, at the request of J. V. Campo, came to 16 Harcourt Street and was told by Campo to drive his truck into the well under the chute. 'He went back to his truck and was instructed by a Mr. McGonagle where to put his truck in the well.' While the sawdust was being loaded onto the truck, the plaintiff was discovered 'unconscious on the sawdust in his truck bleeding from a head would and lying beside him in the truck [was] a furniture clamp of the type used to fasten the box above.' After the accident J. V. Campo 'went up to the third floor, looked at the box and chute; * * * one of the four clamps was missing, and 'there was no ropes on when I went out there. They had been taken off for some reason or another * * *. I don't know who took them off or why they were taken off.''

At the close of the plaintiff's case the tenants and the landlords rested. Each group of defendants moved for a directed verdict. Both motions were denied and the jury returned verdicts for the plaintiff against both...