Partridge v. United Elastic Corp.

• Decision Date: 02 July 1934
• Parties: PARTRIDGE v. UNITED ELASTIC CORPORATION.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

288 Mass. 138

192 N.E. 460

PARTRIDGE

v.UNITED ELASTIC CORPORATION.

Supreme Judicial Court of Massachusetts, Hampshire.

July 2, 1934.

Exceptions from Superior Court, Hampshire County; T. J. Hammond, Judge.

Action by Annetta L. Partridge, administratrix, against the United Elastic Corporation. Judgment in favor of plaintiff, and defendant brings exceptions.

Exceptions overruled.

J. N. Clark, of Boston, for plaintiff.

F. J. Carney and W. J. Killion, both of Boston, for defendant.

LUMMUS, Justice.

On December 20, 1929, the plaintiff's intestate was employed by the New England Telephone and Telegraph Company as a firstclass repair man in Easthampton and neighboring towns. On that day just before five o'clock in the afternoon, he was in the switchboard room on the premises of the defendant, talking with the head electrician of the defendant. About five o'clock, the plaintiff's intestate left the switchboard room, and shortly afterwards started in his automobile, with headlights lighted, to leave the defendant's plant by a roadway on its premises, which after a sharp turn ran across a canal, also on its premises. There was no guard rail on the side of the roadway as it crossed the canal. The automobile ran off into the canal and overturned, and the plaintiff's intestate was drowned.

On the first count, for conscious suffering, the jury found for the plaintiff, and assessed damages of $1. On the second count, under G. L. (Ter. Ed.) c. 229, § 5, for negligently causing death, the jury found for the plaintiff, and assessed damages of $8,542. Exceptions taken by the defendant bring the case here.

The first question is whether there was evidence from which the jury could have found that the plaintiff's intestate was an invitee of the defendant. The head electrician of the defendant testified that the only subject of his brief conversation with the plaintiff's intestate, just before the accident, was their proposed joint wiring of a church that evening, in preparation for Christmas. But there was evidence from other witnesses that there was trouble with the telephone system maintained by the telephone company at the plant of the defendant; that it was the duty of the plaintiff's intestate to test that system and make the needed repairs; and that about four o'clock on the afternoon of the accident he informed a supervisor in the telephone office that he was going out to do a small job elsewhere and intended then to proceed to do some testing at the defendant's plant. That was evidence of the purpose with which he visited the plant. Inness v. Boston, Revere Beach & Lynn Railroad, 168 Mass. 433, 47 N. E. 193;Commonwealth v. Trefethen, 157 Mass. 180, 185, 195, 31 N. E. 961,24 L. R. A. 235;Gould v. Kramer, 253 Mass. 433, 438, 439, 149 N. E. 142; Wigmore, Evidence (2d Ed.) §§ 1725, 1726. There was also evidence, admissible under G. L. (Ter. Ed.) c. 233, § 65, that a few minutes before five o'clock on that afternoon he telephoned to a clerk in the office of the telephone company, whose duty it was to keep a record of his time, giving her information from which it could be found that he had spent a certain amount of time on aerial cable repairs at the plant of the defendant. This warranted a finding that the plaintiff's intestate was upon the premises of the defendant for its purposes and at its implied invitation.In that case, the defendant owed him the same duty of care that it owed to its own servants. Walker v. Benz Kid Co., 279 Mass. 533, 181 N. E. 799;Brogna v. Capodilupo, 279 Mass. 586, 181 N. E. 828;Stern v. Swartz, 283 Mass. 436, 186 N. E. 584. See, also, Lanstein v. Acme White Lead & Color Works (Mass.) 189 N. E. 44, and cases cited.

The next question is whether there was evidence of a negligent breach of duty on the part of the defendant towards the plaintiff's intestate. There was an absence of means of preventing persons from driving off the roadway into the canal. This condition had existed, according to uncontradicted testimony, for twelve or thirteen years, during which Partridge had been coming to the Glendale Mills, where he had handled all the telephone troubles that arose. But it did not appear that he was familiar with the increased danger that arose from darkness, or that he knew that it was the practice to turn the lights off shortly after five o'clock. It might have been found negligent to turn the lights off at that time without first giving Partridge an opportunity to make his way out. Such negligence might have been found a cause of the accident and death.

A ruling that the defendant had sustained the burden of proof of showing contributory negligence on the part of Partridge could not have been made. Even if Partridge realized the danger in the unguarded bridge and failed to avoid it, he was not necessarily negligent. Barnes v. Berkshire Street Railway, 281 Mass. 47, 50, 183 N. E. 416. The question was for the jury.

What has been said disposes of most of the rulings and requests for rulings concerning which exceptions have been argued. A few must, however, be dealt with more particularly.

The defendant excepted to the refusal of the judge to give the seventh request, which was as follows: ‘7. If the deceased entered upon the defendant's premises to do work for the Telephone Company, under the circumstances described, the defendant owed him no duty to warn him that there was no guard or railing upon the bridge crossing the canal.’ That doubtless was true as applied to conditionsin daylight. But the negligence relied on was in turning off the lights without warning and leaving the plaintiff to find his way out in the dark over a dangerous bridge. The unguarded bridge was only one element in the breach of duty alleged. The request falls within the rule stated in Barnes v. Berkshire Street Railway, 281 Mass. 47, 50, 183 N. E. 416, et seq. As Holmes, J. said in Collins v. Inhabitants of Greenfield, 172 Mass. 78, 81, 51 N. E. 454, 455, ‘the judge was not required * * * to break, one by one, the sticks which were relied on only when bound together in a fagot.’ See, also, Clarke v. Second National Bank, 177 Mass. 257, 264, 59 N. E. 121;Tonsman v. Greenglass, 248 Mass. 275, 278, 279, 142 N. E. 756. The eighth, eleventh, twelfth and nineteenth requests of the defendant fall under the same rule.

The defendant saved an exception ‘to giving the plaintiff's fourth and fifth requests.’ The passages in which the judge dealt with the subject matter of those requests are as follows: ‘If Partridge was on the premises as a mere licensee, the company were not obliged to keep the premises safe for his use or to warn him of the fact that there was no rail on the cement slab or that the canal was there. If you should find, however, that the situation was such that it amounted to a hidden trap, something that wouldn't be seen or discovered or observed by the ordinary person who was travelling back and forth on passageway or route that, [sic] the rule would be that the owner was obliged, if it knew of the existence or should have known of the existence, to have warned him of anything that you find tends to constitute a hidden trap or dangerous situation, that might properly be described as such.’ Later in the charge the judge said: ‘If you find that Partridge was a licensee on the premises of the defendant, it was the duty of the defendant to warn him against hidden defects or the condition of the premises that constituted a defect. The plaintiff is entitled to recover if the jury find there existed on the premises a hidden defect of which the defendant should have had knowledge, of which Partridge had none, and which practically caused the death of Partridge * * *. If he was there purely as a licensee and nothing more, then negligence on the defendant's part must be proved by the plaintiff by a fair preponderance of the evidence. If you find the deceased was a licensee, then the only duty owed him was to refrain from any wanton, wilful or reckless conduct that was likely to injure him. * * * If you find that the deceased was a licensee only, then of course he wouldn't be entitled to recover except for wanton or wilful misconduct on the part of the defendant.’ Between the two passages already quoted, the judge said: ‘If you find that that was so, that he [Partridge] was not there on business of interest to the Telephone Company or to the Rubber Thread [the defendant], but was there purely in reference to matters of his own, and when I say matters of his own, I mean of some importance to him like the church festival, and for no other reason, then I instruct you as a matter of law, he could...