Partridge v. United Elastic Corp.
| Decision Date | 23 October 1934 |
| Citation | 288 Mass. 138 |
| Parties | ANNETTA L. PARTRIDGE, administratrix, v. UNITED ELASTIC CORPORATION. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
October 3, 1934.
Present: RUGG, C.
Negligence, Invited person, Of one owning or controlling real estate, Causing death, Contributory. Practice, Civil, Conduct of trial judge's charge, requests, rulings and instructions Exceptions: whether error harmful. Evidence, Relevancy and materiality. Damages, For tort. At the trial of an action of tort, under G. L. (Ter. Ed.) c. 229, Section
5, by an administratrix against a corporation operating a manufacturing plant for causing the death of the plaintiff's intestate while on the premises of the defendant, an issue was, whether the intestate was on the premises as a mere licensee or as an invitee of the defendant. There was evidence that the intestate was employed by a telephone company as a repair man; that the defendant had some trouble with its telephone system; that it was the intestate's duty to test that system and make needed repairs; that at about 4 P.M. 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; and that a few minutes before 5 P.M. 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. The injury resulting in his death occurred as he was on the defendant's premises leaving the plant shortly after 5 P.M. Held, that a finding was warranted that, when injured, the intestate was upon the premises of the defendant for its purposes and at its implied invitation.
At the trial of the action above described, it appeared that the intestate, in leaving the defendant's plant shortly after 5 P.M. on a day late in
December, after the lights there had been turned off, drove an automobile, with headlights lighted, along a roadway in the defendant's grounds which, after a sharp turn, ran over a canal on a bridge where there was no guard rail, and that the automobile ran into the canal and he was drowned. There was evidence that there had been no guard rail on the bridge for twelve or thirteen years, during which the intestate had been coming to the plant; but it did not appear that he was familiar with the increased danger which arose from darkness, or that he knew that it was the defendant's practice to turn the lights off shortly after 5 P.M. Held, that
(1) If the intestate was on the premises for the defendant's purposes and at its implied invitation, the defendant owed him the same duty of care which it owed to its own servants;
(2) In view of the fact that there was an absence of means of preventing persons from driving off the roadway into the canal, findings were warranted that it was negligence on the part of the defendant to turn the lights off without first giving the intestate an opportunity to make his way past the canal, and that such negligence was a cause of the accident and death;
(3) Even if the intestate realized the danger in the unguarded bridge and failed to avoid it, he was not necessarily negligent; and a ruling that the defendant had sustained the burden of proving him guilty of contributory negligence could not properly have been made.
The unguarded bridge was only one element in the breach of duty by the defendant alleged in the action above described, and it therefore was proper for the trial judge to refuse to rule: "If the deceased entered upon the defendant's premises to do work for the telephone company, in 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."
A judge in his charge to the jury need state to them only the law applicable in the particular case being tried.
At the trial of the action above described, after the close of the judge's charge, which contained contradictory instructions respecting liability of the defendant if the intestate were found to be a mere licensee, the defendant saved certain exceptions and the judge stated to the jury that they should determine whether or not the intestate "was on the premises as an invitee or a pure licensee, that is, on business of his own"; that if they found that he the defendant and to his employer. The defendant made no further objection.
There was a verdict for the plaintiff. Held, that (1) It must be inferred from the verdict that the jury found the intestate to have been an invitee;
(2) Taken as a whole, the charge was not erroneous or misleading; and the exceptions must be overruled.
The plaintiff administratrix in the action above described was the widow of the intestate. At the trial the defendant offered and the judge excluded evidence that the intestate's employer, which was not insured under the workmen's compensation act, maintained a benefit fund for employees; that the plan provided for a death benefit to the wife upon the death of an employee resulting from accidental injury, which the wife might elect to take instead of bringing an action at law against the employer; that the plaintiff, as widow of the intestate, had elected to take the death benefit, had received from the benefit fund $5,000 for her husband's death and $150 for funeral expenses and had given two covenants not to sue the employer, one signed by her individually and the other signed by her as administratrix. There were verdicts for the plaintiff on a count for conscious suffering in the sum of $1, and on a count for causing the death in the sum of $8,542. The defendant contended that the plaintiff could not recover or collect that part of the verdict on the count for causing death which, when the verdict was added to the $5,150 received from the benefit fund, exceeded the $10,000 permitted as damages for death under G. L. (Ter. Ed.) c.
229, Section 5. Held, that (1) The payment from the benefit fund was to the widow as such, not to her as administratrix, and did not depend upon the existence of any cause of action or supposed cause of action against the intestate's employer;
(2) The defendant was not entitled, because of the amount received from the benefit fund maintained by the decedent's employer, to a reduction in the penalty assessed against the defendant under the statute.
(3) The evidence properly was excluded.
TORT. Writ dated July 2, 1931. In the Superior Court, the action was tried before T. J. Hammond, J. Material evidence, and rulings and instructions by the judge are described in the opinion. There were verdicts for the plaintiff on a count for conscious suffering of her intestate in the sum of $1, and on a count for causing his death in the sum of $8,542. The defendant alleged exceptions.
F. J. Carney, (W.
J. Killion with him,) for the defendant.
J. N. Clark, for the plaintiff.
On December 20, 1929, the plaintiff's intestate was employed by the New England Telephone and Telegraph Company as a first-class repair man in East-hampton 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, Section 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 . Commonwealth v. Trefethen, 157 Mass. 180 , 185-195. Gould v. Kramer, 253 Mass. 433, 438, 439. Wigmore, Evidence (2d ed.) Sections 1725, 1726. There was also evidence, admissible under G. L. (Ter. Ed.) c. 233, Section 65, that a few minutes before five o'clock on that afternoon he telephoned to a clerk in...
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