Telless v. Gardiner

• Decision Date: 31 January 1929
• Citation: 266 Mass. 90,164 N.E. 914
• Parties: TELLESS v. GARDINER et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

266 Mass. 90

164 N.E. 914

TELLESS

v.GARDINER et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Jan. 31, 1929.

Exceptions from Superior Court, Suffolk County; Hugo A. Dubuque, Judge.

Action by Leslie Telless against Robert H. Gardiner and others, trustees. Verdict was directed for defendants, and plaintiff brings exceptions. Exceptions overruled.

Edward M. Dangel and Leo E. Sherry, both of Boston, for plaintiff.

J. M. Morrison and John W. Coughlin, both of Boston, for defendants.

WAIT, J.

The plaintiff, a truckman, went to the third floor of a building owned by the defendants, to take away clothing from premises on that floor leased to one Linsky. He loaded the clothing upon a freight elevator, went with ti to the ground floor and while removing it was injured by being struck by the gate of the elevator way. The jury could find that as the elevator platform reached the street floor, the elevator man pushed up this gate, and, when it started to slide down again, pushed it higher, stood holding his hand upon it, and said ‘All right now.’ The plaintiff took one pile of the clothing to his truck, returned for another, picked up an armful and turned to step out, when the gate fell, striking him on the head. They could find that the plaintiff two or three times before had seen the gate fall when thrown up and left to itself, and had seen the operator hold it up while people were leaving the elevator. They could find that the gate was defective because the catch did not operate, or that the elevator man was careless in failing to push it to a sufficient height to enable the catch to hold it firmly.

It was not disputed that Linsky's lease provided that, as lessee, he would make no claim against his lessors ‘for any injury to person or property which may result from the operation of the elevators, or in any other manner or from any other cause in the building’; and that the lessors would make no charge for the use of the freight elevator to the lessee who agreed ‘to use said elevator for the transportation of freight only, in common with others, at their [his] own risk, and in such manner as not to require the attendance of any servant of the Lessors.’ Nor was it disputed, as matter of fact, that the defendants themselves employed and paid an elevator man to manage the elevator who was in charge of it at the time of the accident. The plaintiff's account of the operator's conduct, however, was fiatly contradicted. The trial judge directed a verdict for the defendants. The only question is whether this was error.

There is no liability unless there was an obligation. The plaintiff was not using this freight elevator in consequence of any invitation,...