Telless v. Gardiner
| Decision Date | 30 January 1929 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
| Parties | LESLIE TELLESS v. ROBERT H. GARDINER & others. |
November 13, 1928.
Present: RUGG, C.
J., CROSBY CARROLL, WAIT, & SANDERSON, JJ.
Landlord and Tenant, Landlord's liability to tenant's invitee Elevator. Negligence, Gross, Licensee of one owning or controlling real estate.
A truckman, using a freight elevator in a building to remove freight for a lessee from premises on the third floor, was not entitled to recover, in an action of tort against the owner of the building, for injuries due to negligence, but not to gross negligence, of the defendant or of an employee of his who was operating the elevator, where it appeared that the lease of the defendant to the lessee, on whose business the plaintiff was using the elevator, provided that the lessee would make no claim against his lessor "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 lessor 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 . . . [his] own risk, and in such manner as not to require the attendance of any servant of the" lessor; the plaintiff was at most a licensee and had no better standing than the lessee, who used the elevator at his own risk.
Evidence, at the trial of the action above described, which would warrant a finding that the gate of the elevator 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, and that he had assured the plaintiff, when the gate had started to slide down and he had pushed it higher, that it was "All right now," would not warrant a finding of the gross negligence essential to the maintenance of the action.
TORT for personal injuries. Writ dated December 21, 1922. In the Superior Court, the action was tried before Dubuque, J. Material evidence is stated in the opinion. The judge ordered a verdict for the defendants. The plaintiff alleged exceptions.
The case was submitted on briefs. E.M. Dangel & L.E. Sherry, for the plaintiff.
J.M. Morrison & J.W. Coughlin, for the defendants.
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 it 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...
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