Wainwright v. Jackson

• Decision Date: 17 May 1935
• Citation: Wainwright v. Jackson, 291 Mass. 100, 195 N.E. 896 (Mass. 1935)
• Parties: WAINWRIGHT v. JACKSON et al.
• Court: Supreme Judicial Court of Massachusetts

291 Mass. 100

195 N.E. 896

WAINWRIGHT v. JACKSON et al.

Supreme Judicial Court of Massachusetts, Suffolk.

May 17, 1935

Action of tort by Morton D. Wainwright against Henry M. Jackson and others. From an order by the Appellate Division dismissing report of the justice who found for the defendants, the plaintiff appeals.

Order affirmed.

Violation of law is cause of injury only where unlawful or forbidden element in conduct complained of, rather than that conduct viewed as a whole, is found to be the cause.

Appeal from Municipal Court of Boston, Appellate Division.

M Witte, of Boston, for appellant.

J. H Dooley, of Boston, for appellees.

RUGG Chief Justice.

The plaintiff in this action of tort seeks to recover compensation for personal injuries sustained by him as a result of alleged negligence of the defendants. The contention of the plaintiff is that the defendants owners of an apartment house in which the plaintiff was a tenant, failed to provide the fire fighting appliances required by G. L. (Ter. Ed.) c. 143, § 24, that that failure constituted negligence, and that such negligence was the cause of his injuries. The trial judge found that the plaintiff was an occupant of an apartment in a house owned by the defendants and was injured by reason of jumping from a window on the second floor of the building in order to escape injury by fire. The defendants neglected to perform the duty imposed on them by G. L. (Ter. Ed.) c. 143, § 24, requiring that the basement and each story of a building like that in which the plaintiff lived ‘ shall be supplied with means of extinguishing fire * * * and such appliances shall be kept at all times ready for use and in good condition.’ On the day in question fire of unknown origin started in the basement of the building. About 10 o'clock in the evening the janitor of the building went to the basement, banked his fires, and returned to his apartment which was on the second floor of the three story building. After being in his apartment about three or five minutes he smelled smoke, found that the basement was a mass of flames and smoke and it was impossible for him to go down. The fire gained headway so rapidly that he could not do anything to stop it except to telephone the fire department, which was done at once. The trial judge found that there was no negligence on the part of the plaintiff in jumping from the window of his apartment, but upon all the evidence he was ‘ unable to find affirmatively that the defendants' failure to provide appliances for fire protection as required’ by the statute ‘ was the proximate cause of or in any way causally related to the injuries sustained by the plaintiff’ since there was no evidence that the plaintiff or any of the other tenants tried to use a fire extinguisher or even to find one to use as a means of protection when the fire broke out.

The trial judge denied the plaintiff's request for ruling to the effect that ‘ on all the evidence the plaintiff is entitled to recover.’ This request was not in conformity to that part of Rule 28 of the Rules of the Municipal Court of the City of Boston (1932) of this tenor: ‘ No review as of right shall lie to the refusal of a request for a ruling ‘ upon all the evidence’ in a case admitting of specification of the grounds upon which such request is based unless such grounds are specified in the request, and then only upon the grounds so specified.'It was possible to make requests containing specifications touching the points argued by the plaintiff. Reid v. Doherty, 273 Mass. 388, 173 N.E. 516; Holton v. American Pastry Products Corp., 274 Mass. 268, 174 N.E. 663; Duralith Corp. v. Leonard, 274 Mass. 397, 400, 174 N.E. 511.

Passing that point, however, and considering the case at large, the plaintiff shows no error of law. It is manifest that questions of fact were raised on this record and that a ruling that the plaintiff was entitled to recover as matter of law could not rightly have been granted. Confessedly there was violation of a criminal statute on the part of the defendants. It may be assumed that that statute is...