Palmer v. Boston Penny Sav. Bank

• Citation: 301 Mass. 540,17 N.E.2d 899
• Parties: WILLIAM E. PALMER v. BOSTON PENNY SAVINGS BANK.
• Decision Date: 05 December 1938
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

301 Mass. 540

17 N.E.2d 899

WILLIAM E. PALMER v. BOSTON PENNY SAVINGS BANK.

Supreme Judicial Court of Massachusetts, Suffolk.

December 5, 1938

November 14, 1938.

Present: FIELD, C.

J., DONAHUE LUMMUS, DOLAN, & RONAN, JJ.

Negligence, Invited person, Garage, One owning or controlling real estate Contributory.

Evidence of the circumstances in which the owner of an automobile, after leaving it in a public garage to be called for during the night, returned after dark and, finding a large entrance door locked and no lights or means of signalling on the outside of the garage, entered a small, unlocked door believing it to be an entrance similar in appearance which he previously had observed, and in the darkness fell down a stairway, warranted findings that the plaintiff was an invitee in entering where he did and that the proprietor of the garage was negligent in not providing for his safety; and a finding that the plaintiff was guilty of contributory negligence was not required.

TORT. Writ in the Superior Court dated March 24, 1934. The declaration as amended included two counts, the first based on negligence and the second on gross negligence. Brogna, J., ordered a verdict for the defendant on the second count and the jury found for the plaintiff on the first count in the sum of $5,000. The defendant alleged exceptions.

W. R. Donovan, (J.

T. Connolly with him,) for the defendant.

G. W. Arbuckle, (O.

V. Fortier with him,) for the plaintiff.

RONAN, J. The defendant owned and conducted a public garage upon Waldo Street, so called, a dead-end private way in Brookline. At six o'clock on the evening of February

10, 1933, the plaintiff drove his automobile into this garage for the purpose of leaving it there until he called for it later in the night. He stopped his automobile on the first floor a short distance from the entrance, received a ticket from the attendant and went out of the building through the same door by which he had entered. The plaintiff had never before been in this garage.

The defendant's premises had three entrances, a large center door for the use of motor vehicles and on either side and a few feet away an ordinary sized door. The door farther down Waldo Street we shall call the westerly door and the other the easterly door. The westerly door led directly into the garage. A cement landing extended about two and one half feet from the inside of the easterly door to an iron stairway which descended eighteen to twenty feet to the boiler room. Although the two side doors were of the same general design there were apparent differences in the construction of the doors and transoms, but it is unnecessary to detail such differences as the jury could find that the plaintiff had never seen the westerly door (as distinguished from the doorway) and that he had seen the easterly door only a few seconds before he was injured. The plaintiff when he left his automobile noticed that one could leave the garage through this westerly doorway.

The jury could find that the plaintiff, with two companions, returned to the garage about two o'clock on the morning of February 11 1933, and that, as they came along the middle of Waldo Street, there were no lights upon this private way or upon the outside of the garage. They tried to open the center door but were unable to do so. They then inspected this door to determine if it contained a smaller door through which a person might pass. They did not find any such door. They looked through the glass in the center door and saw a dim light inside the garage. They rapped upon the door but none of the defendant's employees heard them, although one was busy in the stock room, a short distance away, checking figures. They then looked to see if there was another entrance to the garage. One of the plaintiff's friends walked to the right and opened the easterly door, and the plaintiff, believing that he was then using the westerly door, stepped inside and almost immediately fell down the iron stairway. The landing to this stairway was in complete darkness, and the plaintiff did not stop to think that it could not have led into that portion of the garage where automobiles were kept, as he could not then see the light inside the garage which he had just previously seen through the windows of the center door. The jury returned a verdict for the plaintiff, and the case is here upon the defendant's exception to the refusal of the judge to grant its motion for a directed verdict.

The defendant was engaged in conducting a public garage and seeking the patronage of those who desired to have their automobiles stored, washed and given service. It was bound to keep its premises in a reasonably safe and suitable condition for the use of those who entered thereon for the purpose of transacting, with the defendant, the business for which the property was apparently adapted and maintained. If the presence of such a person upon the premises was likely to be attended by a peril not open and obvious and concerning which he had no knowledge, then the defendant, if it knew or ought to have known of such danger, was obliged to warn such person or to take other appropriate measures to avert injury to him. Grogan v. O'Keeffe's Inc. 267 Mass. 189 . Kennedy v. Cherry & Webb Co. Lowell, 267 Mass. 217 , 219. Kelley v. Goldberg, 288 Mass. 79 . The plaintiff had the right to enter the garage in order to obtain his automobile, and the defendant, whose liability depended not only upon the scope of the invitation extended to the plaintiff but also upon the terms of the bailment in accordance with which it had accepted the custody of the plaintiff's property, was required to permit him to enter...