Peay v. Reidy
| Decision Date | 11 June 1947 |
| Citation | 321 Mass. 455,73 N.E.2d 737 |
| Parties | LEROY PEAY v. ROBERT C. REIDY, administrator. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
April 9, 1947.
Present: FIELD, C.
J., QUA, DOLAN RONAN, & WILKINS, JJ.
Landlord and Tenant, Landlord's liability to tenant or his family or his invitee, Elevator, Covenant against liability. Negligence, Invited person, Contractual limitation of liability, Elevator, Contributory. Agency, Scope of authority or employment.
A landlord of a business building, who retained control of an elevator therein and had granted to a tenant on an upper floor the privilege of having an employee of the tenant operate the elevator in the evening after the landlord's operator had left, owed to the tenant's employee, as a business invitee of the tenant, a duty to refrain from causing him injury through negligent conduct respecting the elevator.
A provision of a lease of premises on an upper floor of a business building that the lessee would hold the lessor harmless against loss
"by reason of any accident or damage to any person or property happening on" the demised premises, was inapplicable to injuries sustained by an employee of the lessee through alleged negligence of the lessor in connection with an elevator which remained in the lessor's control and did not form part of the demised premises.
A finding that an employee of the landlord of a business building, employed by him to operate an elevator therein, was negligent toward an employee of a tenant on an upper floor was warranted, and a ruling that the tenant's employee was guilty of contributory negligence was not required, by evidence of the circumstances in which on a certain evening, contrary to invariable custom and to an assurance given by the landlord's operator to the tenant's employee on that evening, the landlord's operator left the elevator, which the tenant's employee was later to operate in accordance with permission of the landlord, at an upper floor instead of at the street floor, and the tenant's employee, in darkness of the street floor resulting from wartime blackout regulations, fell into the elevator well and was injured.
An employee of the landlord of a business building, employed by him to operate an elevator therein, could properly be found to have been acting within the scope of his employment in telling an employee of a tenant on an upper floor that he would leave the elevator at the street floor for the tenant's employee to operate in a certain evening and in leaving the elevator at an upper floor instead, whereby the tenant's employee fell into the elevator well at the street floor and was injured.
TORT. Writ in the Superior Court dated November 19, 1942. The case was tried before Dowd, J.
In this court the case was submitted on briefs.
F. P. Ryan & S.
Perman, for the defendant.
Nicholas Fusaro & Nunziato Fusaro, for the plaintiff.
This action was originally brought against Maurice F. Reidy, the defendant's intestate, to whom we will refer as the defendant. On February 21, 1942, the plaintiff was injured by falling into an elevator well in a building on Foster Street in Worcester owned by the defendant. There was a verdict for the plaintiff, and the defendant excepted.
The defendant's building was three stories in height, with a basement, and was rented to a number of tenants. The defendant retained control of the elevator, which, it could be found, was in general operated by one White, an employee of the defendant. Peacock Beauty Shop, Inc., was a tenant on the third floor. It employed the plaintiff. His work seems to have been principally cleaning, which he would do in the early part of the day, but he would return again at 6:30 at night and relieve White in operating the elevator and would remain until eight o'clock or later when all the Peacock customers had come down. There was evidence that the defendant had granted to the Peacock corporation the privilege of having its man operate the elevator in the evening after White left. See Murphy v Alpine Press Inc. 291 Mass. 239 , 241-242. The lease from the defendant to the Peacock corporation contained a provision by which the latter was to save the defendant harmless from any loss "by reason of the lessee's use or misuse of the demised premises and from any loss by reason of any accident or damage to any person or property happening on said premises."
There was evidence from which the following additional facts could be found: The elevator was located about ten feet inside the door on the first floor. There was a door to the elevator well outside the elevator and in addition a folding gate "near the elevator." During the two years while the plaintiff had been running the elevator evenings the entrance to the building had been well lighted, but after January 9, 1942 blackout regulations having gone into effect, the lights were extinguished at 6:30 by White or by the janitor, and the plaintiff was instructed by the superintendent of the building not to turn them on. It was "black as the inside of a derby and couldn't see nothing." The elevator was operated after January 9 with only the elevator light on in the center of the elevator. This was lighted by a button inside the elevator. On the night of the accident, February 21, 1942, the plaintiff returned to the building at about six o'clock and rode up with White to the Peacock corporation, where the plaintiff got his pay. He rode down again with White and told White he was going to supper and would return at 6:30. White said it was all right, and that he would leave the elevator at the first floor for the plaintiff. The plaintiff had always found the elevator at the first floor when he reported for work at 6:30. There had never been a time when it was not at the first floor. When the plaintiff returned at about 6:35 White had gone. The building was very dark, and the door was locked. The plaintiff unlocked the door, but did not put on any lights because he had strict orders from the superintendent ...
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