O'malley v. Twenty-five Associates

• Decision Date: 07 March 1898
• Citation: 49 N.E. 641,170 Mass. 471
• Parties: O'MALLEY v. TWENTY-FIVE ASSOCIATES.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

170 Mass. 471

49 N.E. 641

O'MALLEY v. TWENTY-FIVE ASSOCIATES.

Supreme Judicial Court of Massachusetts, Worcester.

March 7, 1898

COUNSEL

J.W. Corcoran, T.F. Larkin, and W.B. Sullivan, for plaintiff.

F.P Goulding, Jona Smith, and Wm. C. Mellish, for defendant.

OPINION

FIELD C.J.

There was evidence for the jury that the hoisting apparatus was put in by the defendant, and was intended to be used by all the tenants of the building, and that it was not in the exclusive control of any one tenant, but was under the general control of the landlord, subject to the use of it by all the tenants. The exceptions recite: "The plaintiff called witnesses to show that, within a few days after said apparatus fell and was broken, the defendant put another in its place, and has ever since maintained it for the use of the tenants aforesaid. Counsel for plaintiff stated that this evidence was offered, not for the purpose of proving negligence, but upon the question of control of the apparatus, and for no other purpose; but the court excluded the evidence, and the plaintiff seasonably excepted." This evidence should have been admitted for the purpose for which it was offered. It had some tendency to show that the defendant admitted that it was its duty to maintain a suitable hoisting apparatus for the use of the tenants. Other evidence excluded by the presiding justice should, we think have been admitted, for the purpose of showing that the defendant recognized it as its duty to make such repairs, which might have been found to include repairs upon the hoisting apparatus. Readman v. Conway, 126 Mass. 374; Poor v. Sears, 154 Mass. 539, 28 N.E. 1046. This is not a case where, on the evidence, it was conclusively shown that the hoisting apparatus was in the exclusive control of the tenant Dias, or of all the tenants of the building. See McKeon v. Cutter, 156 Mass. 296, 31 N.E. 389. If the defendant furnished and retained control of this apparatus, as a means provided for hoisting merchandise for the use of its tenants, it was its duty to take reasonable care to furnish a suitable apparatus, and to keep it in suitable condition. Lynch v. Swan, 167 Mass. 510, 46 N.E. 51; Wilcox v. Zane, 167 Mass. 302, 45 N.E. 923; Marwedel v. Cook, 154 Mass. 235, 28 N.E. 140; Learoyd v. Godfrey, 138 Mass. 315.

There was evidence for the jury that the plaintiff, engaged in hoisting coal for Dias, a tenant, was in the exercise of due care; that the apparatus was intended to be used by dealers in coal and their servants for hoisting coal for the use of the tenants; that the weight of the coal hoisted was not unusual or greater than what the hoisting apparatus was intended to bear; that the hook which broke was of insufficient strength, and was made of cast iron, which the jury might have found to be unsuitable material; and that it was too small. It was for the jury to determine, on the evidence, whether the defendant had or had not exercised due care in furnishing and keeping in repair a proper hoisting apparatus. See Hayes v. Iron Co., 150 Mass. 457, 23 N.E. 225.

In the opinion of a majority of the court the entry must be: Exceptions sustained.

DISSENTING

HOLMES J. (dissenting).

Mr Justice KNOWLTON, Mr. Justice LATHROP, and myself are unable to agree with the decision of the majority of the court, and we think it best to state the fact, and the reasons for our dissent, were it only to prevent the decision from being taken as a precedent for more than it decides. The plaintiff may be held entitled to recover upon either one of two different grounds: He may be held to have rights of his own, independent of those of a tenant, and greater, by reason of an invitation supposed...