Siver v. Atlantic Union College

• Decision Date: 08 December 1958
• Citation: 154 N.E.2d 360,338 Mass. 212
• Parties: Kenneth SIVER v. ATLANTIC UNION COLLEGE et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 360

154 N.E.2d 360

338 Mass. 212

Kenneth SIVER v. ATLANTIC UNION COLLEGE et al.

Supreme Judicial Court of Massachusetts, Worcester.

Argued Sept. 23, 1958.

Decided Dec. 8, 1958.

Morris N. Gould, Clinton, for plaintiff.

Philip J. MacCarthy, Worcester, for defendant Atlantic Union College.

Paul L. Hinchkey, Worcester, for defendant Stump.

Before WILKINS, C. J., and WILLIAMS, COUNIHAN, WHITTEMORE and CUTTER, JJ.

WILLIAMS, Justice.

This is an action of tort to recover for the death and conscious suffering of the plaintiff's intestate, Cheryl Siver, a child of two years and two months. The defendants are Atlantic Union College and its president, Lawrence M. Stump. The plaintiff's declaration is in eight counts of which counts 1 and 2 allege the negligence of the president; counts 3 and 4 the negligence of the college; counts 5 and 6 the wilful, reckless or wanton conduct of the college; and counts 7 and 8 the wilful, reckless or wanton conduct of the college in causing 'to exist a certain dangerous instrumentality.' Specifications filed by the plaintiff state that the negligent and reckless conduct relied upon consists of the maintenance of 'an insufficiently protected pit, or open and unguarded pit, into which pit was allowed to be discharged heated water and steam, and in which pit was allowed to be exposed certain pipes and valves insufficiently protected and open and exposed or insufficiently protected so that safe passage over said pit could not be had.'

The facts are substantially undisputed. At the conclusion of the plaintiff's evidence the judge allowed motions by the defendants for directed verdicts on all of the counts, to the allowances of which the plaintiff excepted.

Atlantic Union College is located in Lancaster and was originally incorporated as South Lancaster Academy in 1883 under the provisions of Pub.Sts. c. 115 for the 'instruction of persons of both sexes in the sciences and holy scriptures, and also to provide facilities for regular and systematic labor for the students.' The academy, whose name was changed in 1922 to Atlantic Union College, was authorized in 1953 to grant certain degrees. In 1954 it conducted a college with 350 students, a high school with 175 students and a grammar school with 125 students, imposing no restrictions on the ground of race, creed or color.

It maintained dormitories for its students, with special houses reserved for those who were married. Students who occupied these dormitories paid rent to the college. The college also maintained a laundry for the students, a dairy farm, a college press and a book bindery. Forty-five of the students' apartments were heated by steam from a central heating plant and received electricity from a central power plant. Resident students were charged for heat and electricity. Some of the dairy products were sold to the public, and the college press accepted some outside commercial work. Steam heat was sold to one outside customer, a commercial firm located near the heating plant. The steam used in the college buildings was returned for condensation to one or more pits located in the college grounds where it was condensed and thence transmitted in liquid form back to the central heating plant.

The defendant Stump was president and manager of the college, his duties being primarily concerned with its finances.

The accident to the plaintiff's intestate, which is the subject of this action, occurred on October 19, 1954, at one of these pits. The plaintiff, who was the father of the injured child, had been a student at the college approximately three years, and for some eighteen months had been living with his wife and two children in his trailer on the college grounds. Oral permission to install the trailer had been given by the president on condition that the plaintiff provide his own sewage facilities, water and lights. He paid no rent to the college but paid for electricity which was supplied to the trailer from the college power plant. The charge averaged approximately $5 per month. The arrangement for the location of the trailer was made with the president through the plaintiff's brother who was assistant business manager. The particular pit to which reference has been made was located four to six feet from a sidewalk leading from one of the college buildings to a road and was fifteen feet from the road. It was within view of the plaintiff's trailer which was on the other side of this road. This pit was covered with a concrete slab eight feet square in the center of which were two covers consisting of an iron grille and a solid iron cover each approximately two feet wide by four feet long. The solid metal cover was stated in the bill of exceptions to weigh ten pounds and in the testimony of one of the witnesses to weigh twenty-five pounds 'more or less.' This cover rested on metal supports and could be raised by means of a bolt inserted in one end of the cover. The pit contained steam and water pipes, a sump pump, a condensation tank, and a pump to return the condensed steam to the central plant. The steam condensed in this pit came from the college gymnasium and an apartment building occupied solely by students and others connected with the college.

At 7 A.M. on October 19, a student observed steam coming from the grille of this pit. His lifted the iron cover and saw in the pit hot water which was approximately two feet deep and appeared to be running from an outlet in the condensation tank. He replaced the cover and at about 8 A.M. reported the presence of the water to the power plant engineer. Between 11 A.M. and 12 M. on the same morning, a woman in a neighboring dormitory noticed that the cover was tilted and that two children were looking down into the pit. Fifteen minutes later, the dead body of Cheryl, the plaintiff's intestate, was...