Mikkanen v. Safety Fund Nat. Bank

• Citation: 222 Mass. 150,109 N.E. 889
• Parties: MIKKANEN v. SAFETY FUND NAT. BANK.
• Decision Date: 16 October 1915
• Court: United States State Supreme Judicial Court of Massachusetts

222 Mass. 150

109 N.E. 889

MIKKANEN

v.SAFETY FUND NAT. BANK.

Supreme Judicial Court of Massachusetts, Worcester.

Oct. 16, 1915.

Report from Superior Court, Worcester County; W. P. Hall, Judge.

Action by Justina Mikkanen against the Safety Fund National Bank. Reported on stipulation. Judgment for plaintiff.

John G. Annala, of Fitchburg, for plaintiff.

T. Hovey Gage, Frank F. Dresser, and Daniel W. Lincoln, all of Worcester, for defendant.

LORING, J.

The difficulty in this case arises from the two facts that the plaintiff's evidence (on which the defendant rested) was meager and that the statement of it in the report is in some respects obscure.

The plaintiff went to Austin's furniture store to buy a clothes basket. She asked for a clerk who could speak Finnish and was told to go to the second floor. Accordingly she went into the hallway and began to go up the stairway, when she was beckoned into a freight elevator by Austin's boy, who was operating it. Thereupon, to quote the words of the report:

‘He took her to the second floor, threw up with his hands the gate across the entrance and opened into the hall the doors that were next to the gate. When the gate was thrown up, and the doors opened, she started to step out, and when one foot was in the hallway and the other was in the elevator the gate came down and hit her. * * * The boy threw up the gate with both hands.’

In addition to testifying herself the plaintiff called no witnesses except Austin, the proprietor of the furniture store, and Kennedy, one of his clerks.

It appeared that Austin was the tenant of one end of the bank building owned by the defendant bank and that he used it for a furniture store. Austin occupied the basement street floor and the three stories above the street floor. The street floor of the other end of the building was occupied by the defendant for carrying on its banking business and that of the center of the building by one Smiley as a dry goods store. The upper stories of the building except those occupied by Austin were fitted up for offices and let to tenants. The main entrance of the building was between the bank and Smiley's store. At this entrance of the building there was a passenger elevator. There was a second entrance to the building between Smiley's and Austin's stores; at the rear of the entry at this entrance was the freight elevator here in question, and on one side of this entry was a stairway. As we understand the report this freight elevator opened on the public entryway at each of the four floors, and on the entryway only, and it was shut off from the entryway at each story by a galvanized iron fire door which was kept locked. These doors swung back, and after they were swung back they closed automatically by reason of a heavy spring on them. The janitor of the building employed by the defendant bank had one key to these fire doors, Smiley had another key, and Austin testified that he and his clerks had five keys to them.

Austin testified that he ‘had occupied the store since 1895 and occupied it in May, 1914,’ the date of the accident to the plaintiff. Beyond this bare statement there is nothing in the bill of exceptions as to the terms of the lease or agreement under which Austin had ‘occupied the store since 1895,’ that is to say, for a period of nineteen years before the accident here in question. Austin testified ‘that the gates were installed in that elevator by order of the state inspector some five or six years ago,’ that is to say some thirteen or fourteen years after he first became a tenant of the furniture store. In answer to the question whether it had been his habit when the public came to the store ‘to take them up on the higher floors in the [freight] elevator,’ Austin testified:

‘Yes; anything above the first floor we always take the elevator. I have been doing that ever since I have been in the place there.’ ‘I have furniture on all five floors.’

He also testified that Smiley used the freight elevator for moving goods from the basement to his store which was on the street floor; and beyond that:

‘The occupants on the higher floors do not use the elevator personally without the janitor.’

It appeared from the bill of exceptions that the gates to the freight elevator were supposed to engage a catch when thrown up, and this catch was released when the elevator went six inches up or down. In addition both he and his clerk testified that the gates at times fell down when they were thrown up and should have stayed up if the mechanism had worked properly. Austin testified that this applied to the gate at the floor here in question, and that the fact that the gates did not work properly had been reported to the janitor. His clerk testified that when the...