Murphy v. Russell

• Citation: 202 Mass. 480,89 N.E. 107
• Parties: MURPHY v. RUSSELL et al.
• Decision Date: 22 June 1909
• Court: United States State Supreme Judicial Court of Massachusetts

202 Mass. 480

89 N.E. 107

MURPHY v. RUSSELL et al.

Supreme Judicial Court of Massachusetts, Hampden.

June 22, 1909

COUNSEL

Danl. E. Leary, Edwd. W. Beattie, Jr., and Geo. D Cummings, for plaintiff.

C. T Callahan, for defendants Merrill and Emerson.

Jas. G Dunning, for defendant John W. Russell.

OPINION

LORING J.

At the close of the evidence in this case the defendant Russell and the defendants Merrill & Emerson asked the judge to rule that on the pleadings and the evidence the plaintiff was not entitled to recover. The judge granted the request and ordered a verdict for the defendants.

The defendants were sued jointly. Russell was the owner of the building and Merrill & Emerson were tenants of the fifth floor, with a right to use the elevator in common with other tenants.

It is not necessary to consider whether the evidence warranted a finding that the accident to the plaintiff was caused by concurring negligence of both sets of defendants, for which a joint action could be maintained under the rule acted upon in Feneff v. Boston & Maine R. R., 196 Mass. 575, 82 N.E. 705, where the earlier cases are collected. Upon that point we express no opinion.

There was no count in the declaration which alleged a joint tort of that or of any other kind. In the first count the plaintiff alleged that the defendant Russell as the owner of the building owed the plaintiff the duty of protecting the elevator shaft with gates and of keeping them in repair, and that the injury was caused by neglect of that duty. In the second, third and fourth counts he sought to hold the defendants Merrill & Emerson liable on the ground that he was in their employ, and that they were negligent in the duty owed by them as employers to him as an employé at common law so far as the second and third counts are concerned, and under the employer's liability act so far as the fourth count went.

The objection that the facts alleged in the declaration do not entitle the plaintiff to judgment can be raised by asking that a verdict be ordered for the defendant as well as by demurrer. Hervey v. Moseley, 7 Gray, 479, 66 Am Dec. 515; Hubbard v. Moseley, 11 Gray, 170, 71 Am. Dec. 698; Nowlan v. Cain, 3 Allen, 261, 263; Oliver v. Colonial Gold Mining Co., 11 Allen, 283; Oulighan v. Butler, 189 Mass. 287, 289, 75 N.E. 726. See, also, Tracey v. Grant, 137 Mass. 181. This practice presumably grows out of the rule introduced in the...