Mcmanus v. Thing

• Decision Date: 28 February 1907
• Citation: 80 N.E. 487,194 Mass. 362
• Parties: McMANUS v. THING et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

194 Mass. 362

80 N.E. 487

McMANUS v. THING et al.

Supreme Judicial Court of Massachusetts, Suffolk.

February 28, 1907

COUNSEL

James E. Cotter and Conrad Reno, for plaintiff.

Edward E. Blodgett and Robert E. Goodwin, for defendants.

OPINION

LORING, J.

By the plaintiff's own testimony, under the arrangement then in force as to the use of the elevator by the different occupants of the building, he (the plaintiff) had no right on it, to it, or the use of it if it was being used by Redding; and, further, in effect, that if the defendant's broken boxes were on the elevator to be taken back and Redding had not left the elevator since he brought them down, the elevator was being used by Redding within the arrangement testified to by him. There did not seem to have been any evidence to the contrary.

It is plain therefore that if the jury believed Redding's story the plaintiff was a trespasser, or at most a licensee at the time of the accident. Albert v. Boston Elevated Ry., 185 Mass. 210, 70 N.E. 52; Shea v. Gurney, 163 Mass. 184, 39 N.E. 996, 47 Am. St. Rep. 446. It is immaterial which, for if either a trespasser or a licensee the defendants were not liable unless their servant Redding injured the plaintiff willfully or acted with such reckless wantonness as to amount to a willful wrong and thereby caused the injury. Banks v. Braman, 188 Mass. 367, 74 N.E. 594; Bjornquist v. Boston & Albany R. R., 185 Mass. 130, 70 N.E. 53, 102 Am. St. Rep. 332; Albert v. Boston Elevated Ry., 185 Mass. 210, 70 N.E. 52; Shea v. Gurney, 163 Mass. 184, 39 N.E. 996, 47 Am. St. Rep. 446.

For these reasons the ninth, tenth, eleventh, twelfth and thirteenth rulings asked for, or the substance of them should have been given.

In place of doing so the presiding judge told the jury that they should find for the plaintiff it they found that Redding (in the course of the defendant's employ) was guilty of ordinary negligence and the injury to the plaintiff was caused thereby.

Exceptions sustained.