Park v. Conveyancers Title Insurance & Mortgage Co.

Rugg, C.J. The plaintiff seeks by this action of tort to recover compensation for personal injuries sustained by him and alleged to have been caused by the negligent management of an elevator in a building managed and controlled by the defendant as mortgagee in possession. The plaintiff testified, in substance, that as a tenant he had an office on the seventh floor of this building and that he always used the elevator to reach his office; that at various times he had found the elevator with the door open; that at half past twelve on the Sunday afternoon of his injury he came out of the bright light of the street into the hall of the building where it was somewhat dark; that thinking at first the gate was closed on the elevator he pushed the button to call the janitor; that then looking through the grating of the elevator shaft he thought he saw the elevator inside the shaft; that he found the elevator door was partly open and immediately stepped in, and, no elevator being there, fell and received the injuries complained of. In fact the elevator was at an upper floor. Evidence relating to the position of the elevator door, the conditions as to light and visibility and other circumstances bearing on the due care of the plaintiff was conflicting. The trial judge took a view. He found that the “plaintiff did not exercise due care and by his conduct was guilty of contributory negligence,” and made a general finding for the defendant. It is not necessary to determine whether as matter of law the burden of proof resting on the defendant to show that the plaintiff by his own negligence contributed to his injury was sustained. See Humphreys v. Portsmouth Trust & Guarantee Co. 184 Mass. 422, 424; Hydren v. Webb, 219 Mass. 542, 546. There was no ruling of law but a finding of fact that the plaintiff was wanting in due care and was guilty of contributory negligence. How much of the plaintiff’s testimony was worthy of credence was for the trial judge. First National Bank of Boston v. Sheridan, ante, 338. Whether the plaintiff with respect to his injury was in the exercise of due care or was contributorily negligent was on all the evidence a question [489] of fact. McSorley v. Risdon, 278 Mass. 415, 416. Perry v. Stanfield, 278 Mass. 563, 572. The testimony afforded ample foundation for a finding of want of due care and of contributory negligence on his part. O’Connor v. Hickey, 268 Mass. 454. This is decisive against the plaintiff. It becomes unnecessary to consider the other arguments presented by the plaintiff, which are concerned wholly with the negligence of the defendant. His requests for rulings need not be examined. Order dismissing report affirmed.