Parker v. Barnard
| Decision Date | 07 May 1883 |
| Citation | 135 Mass. 116 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
| Parties | Michael W. Parker v. James M. Barnard & others |
Argued November 17, 1882
Suffolk. Tort, against the owners and the occupants of a building in Boston, for personal injuries sustained by the plaintiff therein. Trial in this court, without a jury before Field, J., who found for the defendants, and reported the case for the consideration of the full court. The facts appear in the opinion.
New trial ordered.
F Peabody, Jr., (C. A. Prince with him,) for the plaintiff.
A. T Sinclair, for one of the defendants.
A. Russ, (G. A. A. Pevey & H. H. Sprague with him,) for the other defendants.
Devens, J. W. Allen & Holmes, JJ., absent.
The plaintiff was a police officer of the city of Boston, acting under a rule regularly passed by the police commissioners, which made it his duty to examine in the night-time the doors and windows of dwellings and stores, to see that they were properly secured, and to give notice to the inmates, or, if such buildings were unoccupied, to make fast the doors and windows found open. He crossed the threshold of the elevator entrance of the building, of which the defendants were owners or occupants, the doors of which were open, for the purpose of making an examination, thinking it was the entrance to the upper stories, in order that he might be in from the air and there light his candle, and was precipitated down the well of the elevator, which was unguarded, receiving injury thereby. It is found by the report that he entered with the honest belief "that there might be something wrong being done in the building, and with the honest purpose of arresting offenders, if he found any, or of securing the doors for the safety of the property of the occupants."
"It is a very ancient rule of the common law," says Chief Justice Gray "that an entry upon land to save goods which are in jeopardy of being lost or destroyed by water, fire, or other like danger, is not a trespass." Proctor v. Adams, 113 Mass. 376. As individuals may thus enter upon the land of another, firemen may do so for the protection of property, officers of the law for similar purposes, and, under proper circumstances, for the arrest of offenders or the execution of criminal process. The right to do this may be in limitation of the more general right of property which the owner has, but it is for his protection and that of the public. Metallic Compression Casting Co. v. Fitchburg Railroad, 109 Mass. 277, 280. Hyde Park v. Gay, 120 Mass. 589, 593. Commonwealth v. Tobin, 108 Mass. 426. Commonwealth v. Reynolds, 120 Mass. 190. Barnard v. Bartlett, 10 Cush. 501.
When doors are left open in the night-time under such circumstances that property is unprotected, it is a reasonable police regulation which permits an officer to enter in order to warn the inmates of the house, or to close and fasten the doors, and a license so to do is fairly implied, which, at least, should shield him from being treated as a trespasser.
But, if the plaintiff was a licensee, it is contended that he was no more than this; that, if lawfully upon the premises, he was there at his own risk; and that none of the defendants were under any obligation towards him to keep this entrance or the building in a safe condition. It is certainly well settled that, by the common law, no duty is imposed on the owner or occupant of premises to keep them in a suitable condition for those who come upon them solely for their own convenience or pleasure, and who have not been either expressly invited to enter, or induced to come by the purpose for which the premises are appropriated, or by some preparation or adaptation of the place for use by customers or passengers, which might naturally and reasonably lead them to suppose that they might safely and properly enter thereon. Where no such preparation is made, or express or implied invitation extended, and the entry of the licensee is permissive only, there can ordinarily be no recovery for a neglect properly to guard the premises by which such person may be injured. Sweeny v. Old Colony & Newport Railroad, 10 Allen 368, 373. Severy v. Nickerson, 120 Mass. 306.
If this be conceded, it is still to be determined in the case at bar whether, when there is evidence which tends to show that the injury proceeded from the neglect of an obligation imposed upon the defendants by statute, the protection intended to be afforded by means of such a statute is not for the benefit of all those who are upon the premises in the performance of lawful duties, even if they are but licensees, as well as for the benefit of those who are there by inducement or invitation, express or implied, and thus whether such neglect may not be made the foundation of an action.
The St. of 1872, c. 260, is entitled, "An...
To continue reading
Request your trial
-
Cheek v. Prudential Ins. Co.
...(N. S.) 338, to the case of Wolf v. Smith, the subject is fully discussed and numerous cases are cited. In the case of Parker v. Barnard, 135 Mass. 116, 46 Am. Rep. 450, it is "When an act is commanded or forbidden under a statutory penalty, and a failure to do the act enjoined, or the doin......
-
Mounsey v. Ellard
...in one of the three categories established by the common law is reflected in this court's first decisions on the subject. In Parker v. Barnard, 135 Mass. 116, this court noted that public servants acting for the public welfare '(a)s individuals may thus enter upon the land of another, firem......
-
Cheek v. Prudential Ins. Co. of America
... ... R. A. (N. S.) 338, to the case of Wolf v. Smith, ... the subject is fully discussed and numerous cases are cited ... In the case of Parker v. Barnard, 135 Mass. 116, 46 Am. Rep ... 450. It is said: ... ... "When an act is commanded or forbidden under a statutory ... ...
-
Dini v. Naiditch
...within that class for whose protection the ordinance was passed. The court distinguished the leading Massachusetts case of Parker v. Barnard, 1882, 135 Mass. 116, also cited by plaintiffs herein, on the ground that recovery by the injured policeman in that case was predicated on the landown......