Kelley v. First National Bank

Lummus, J. These are three actions of tort to recover for the conscious suffering and death of the plaintiff’s three [171] intestates, as the result of a fire at about one o’clock in the morning of March 20, 1928, in an apartment house controlled by the defendant as executor or trustee under the will of Lucian J. Fosdick, in which the plaintiff’s intestates for some years had occupied an apartment as tenants at will. A motion for a directed verdict as to each count of the declaration, one count being for death and the other for conscious suffering, was denied in each case, subject to the defendant’s exception. The" jury returned a verdict for the plaintiff in each case, upon each count. The plaintiff contended that the fire was caused by the negligence of the defendant in allowing electric light wires to be improperly installed in a shaft, made in part of wood, formerly used for a dumb waiter, and in allowing that shaft to be used for the deposit of rubbish after the wires were installed. There was evidence tending to show the following facts. The shaft was in the control of the defendant. All the tenants were accustomed, to the knowledge of the agent of the defendant, to throw down the shaft rubbish, including papers, cardboard boxes, clothing, bottles, broken dishes and short pieces of wood. No other means of disposal of rubbish was provided. The defendant’s janitor was instructed and was accustomed to clean out the shaft and dispose of the rubbish. About three weeks before the fire the defendant’s agent engaged a contractor to connect certain apartments with electricity, and the. contractor without special directions ran the wires on the inside of the shaft. The wires used had a copper wire as the core, with insulation around that, and outside of the insulation was a metal casing wound spirally, without any opening. The wires were put in rather loosely, and were not laid close to the side of the shaft. The use of such wires, instead of wires enclosed in solid tubes, was not proper in a shaft where heavy objects thrown down the shaft might hit the wires. The contractor was not told that heavy objects were often thrown down the shaft. A sharp, heavy blow might cause the metal casing to penetrate the insulation and the copper wire, creating a short circuit or ground, and [172] an arc of flame, whereby the metal casing might melt and the molten metal might drop into the rubbish below, setting it on fire. The fire started in the shaft. After the fire, the wires were found blackened, the insulation was burned, and there was one break in the wire with a loose end hanging. Partly burned rubbish, empty vegetable cans and broken bottles were found in the bottom of the shaft. An expert testified that if the metal casing of the wire was found broken in only one place after the fire, that indicated that there had been a short circuit or a ground at that place, which burned the casing, rather than a burning from external flames. The duty of the landlord, applicable to this case, was to use reasonable care to keep the shaft as safe as it was at the time of the letting. Angevine v. Hewitson, 235 Mass. 126. Grady v. Gardiner, 272 Mass. 491. Murray v. Lincoln, 277 Mass. 557. Although the work of wiring was done by an independent contractor, the shaft was in the control of the defendant, and its dangerous condition could have been discovered at any time during the week or two weeks between the completion of the work and the fire, by ordinary inspection on the part of the defendant’s agent upon whose approval the defendant paid the contractor. See Buldra v. Henin, 212 Mass. 275; Flanagan v. Welch, 220 Mass. 186, 192, 193; Woodman v. Shepard, 238 Mass. 196; Sciolaro v. Asch, 198 N. Y. 77; Hyman v. Barrett, 224 N. Y. 436. The case was rightly submitted to the jury. We need not consider the plaintiff’s exceptions, for they have been waived. Defendant’s exceptions overruled.