Gardner v. Copley-Plaza Operating Co.

Rugg, C. J. The plaintiff while in the exercise of due care was injured through the negligence of an elevator boy named Hyatt in the employ of the defendant. The verdict of the jury has settled these points and it is not contended that they are unsupported by the evidence. 1. The first contention of the defendant is that at the time of the accident Hyatt, although in its employ, was temporarily the servant of others. This is predicated on evidence that one Barney, representing the general contractor for the construction of the building, had requested that the elevator boys be at the building upon the day’of the accident for the use of the. contractor and subcontractors in putting the finishing [375] touches on the building. But the building was under lease to the defendant. It had been at least in partial possession for some time, installing its furniture and supplies and getting ready to open the hotel to the public. At least one of the three elevators in the shaft where the plaintiff whs injured was operated for the benefit of passengers, and the journey which caused the injury to the plaintiff was for the purpose of carrying employees of the defendant for the performance of their duties as such. The instructions, based upon Coughlan v. Cambridge, 166 Mass. 268, 277, correctly left the decision of this matter to the jury. 2. The request of the defendant that as to it the plaintiff was a licensee, provided the jury believed that the hotel was at the time still being constructed by the general contractor and that the defendant was allowed in it by sufferance and under no claim of right, was denied rightly. Its abstract soundness .is open to grave doubt. But it was not applicable to any phase of the evidence. The building was at the time leased to the defendant, which was in actual occupation in the preparation for inviting the patronage of the public. There is nothing in the exceptions to indicate that the trial proceeded on the theory that the possession of the defendant was any other than under its lease and under a claim of right. It would have tended only to confusion to have given any instructions touching a subject not open on the evidence. 3. If it be assumed that the point, whether the plaintiff was a licensee of the defendant in the use of the elevator well at the time of his injury, was raised fairly, there was no error in its treatment by the trial judge. The plaintiff was at the place of the accident in the performance of a duty required by the contract of his employer with the general contractor. In this respect the building was not quite completed. In the absence of further evidence, it is plain that he was at his post rightfully and not by sufferance of the defendant. He was engaged in making the hotel suitable for occupancy. 4. There was no error in submitting to the jury the question of the negligence of Russell, the head bell-man for the defendant. The judge did not undertake to state the evidence with accuracy in this regard, but simply referred to it in a general way as being sufficient to support a finding of negligence provided it should [376] be found to show that Russell had charge of the elevator boys and that it was his duty to warn them when workmen were employed in the wells, so that they might not be subjected to danger. There was evidence to this effect. 5. It could not have been ruled as matter of law that the plaintiff assumed the risk of Hyatt’s negligence. That was a question of fact to be decided upon all the evidence. Frost v. McCarthy, 200 Mass. 445, 448. They were not fellow servants. Hasty v. Sears, 157 Mass. 123, relied on by the defendant, plainly is distinguishable. 6. The general request that a verdict be directed for the defendant ought not to have been granted. In all its material aspects, the inferences to be drawn from evidence in some respects conflicting presented questions of fact to be submitted to the consideration of the jury. Exceptions overruled.