Scanlon v. United Cigar Stores Co.

• Decision Date: 27 November 1917
• Citation: 117 N.E. 840,228 Mass. 481
• Parties: SCANLON v. UNITED CIGAR STORES CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

228 Mass. 481

117 N.E. 840

SCANLON

v.UNITED CIGAR STORES CO.

Supreme Judicial Court of Massachusetts, Worcester.

Nov. 27, 1917.

Exceptions from Superior Court, Worcester County; Philip J. O'Connell, Judge.

Action by John Scanlon against the United Cigar Stores Company. There was verdict for plaintiff, and defendant excepts. Exceptions sustained, and judgment directed to be entered for defendant.

John F. McGrath, of Fitchburg, for plaintiff.

Chas. C. Milton and Frank L. Riley, both of Worcester, for defendant.

PIERCE, J.

This is an action of tort in which the plaintiff seeks to recover for damages sustained by reason of a fall into an opening into which a condenser had been placed in the cellar occupied by the United Cigar Stores Company at the corner of Main and Pleasant streets in the city of Worcester. The facts are substantially as follows:

The defendant occupied a store and a cellar beneath the store where the plaintiff was injured. The Bay State Trucking Company under an arrangement with the defendant, on an average of once a week, on notice that the defendant had merchandise awaiting delivery, sent its teams to a freight office to get the merchandise and deliver it in the rear way of the defendant's store. The plaintiff was an employee of the trucking company. In the rear of the store there was a street passageway from which a door opened upon a water elevator operated by a rope; there was a bell on the left hand side of the elevator door way. The elevator descended about twelve to fifteen feet from the level of the passageway to the basement floor of the cellar. In the basement were two sheathing partitions: one set off from the elevator the cellar of the defendant, the other partitioned off the cellar of another tenant. Three or four feet from the elevator an ordinary panel door opened into the cellar of the defendant; this door was ordinarily kept locked by a bar on the inside. All merchandise received at the rear of the store was kept in the cellar. Where goods to be delivered were of some size, the customary way of delivery was to drive the team to the elevator in the passageway, ring the bell by the side of the elevator door, and then, if the bell did not attract anybody's attention or was out of order, to go around to the outside, up front and ask for the shipping clerk.

A witness called by the plaintiff testified:

‘It was customary for people delivering goods to come up to the store to notify us that they had goods to deliver; they invariably did that. Until we were notified upstairs nobody had a right in the cellar at all. Sometimes goods were delivered in small parcels upstairs. Larger parcels were delivered downstairs, but not until after notice was given to those in charge upstairs that there was something to be delivered downstairs, and after they were told where to deliver the parcels downstairs, and after there was some one to go with them while delivering the parcels.’

On the day of the accident the plaintiff got a barrell from the freight depot and drove in the back alley; the elevator was not up when he got there. He testified:

‘I called out because I could not get it under way. The rope was on the inside, a ways from the door. I got the rope. The elevator well might have been ten feet deep. ...