McManus v. Thing

80 N.E. 487, 194 Mass. 362, 1907 Mass. LEXIS 982

Opinion

Lobing, J.

The plaintiff testified that under the arrangement then in force as to the use of the elevator by the different occupants of the building, he (the plaintiff) had no right on it, to it, or to the use of it if it was being used by Redding; and, further (in effect) that if the defendants’ broken boxes were on the elevator to be taken back and Redding had not left the elevator after he brought them down, the elevator was being used by Redding within the arrangement testified to by him. There does not seem to have been any evidence to the contrary.

It is plain therefore that if the jury believed Redding’s story the plaintiff was a trespasser or at most a licensee at the time of the accident. Albert v. Boston Elevated Railway, 185 Mass. 210. Shea v. Gurney, 163 Mass. 184. It is immaterial which. For if either a trespasser or a licensee the defendants were not liable unless their servant Redding injured the plaintiff wilfully or acted with such reckless wantonness as to amount to a wilful wrong and thereby caused the injury. Banks v. Braman, 188 Mass. 367.

Footnotes

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* Bjornquist v. Boston Albany Mailroad, 185 Mass. 130. Albert v. Boston Elevated Railway, 185 Mass. 210. Shea v. Gurney, 163 Mass. 184.

For these reasons the ninth, tenth, eleventh, twelfth and thirteenth rulings asked for, or the substance of them, should have been given.

In place of doing so the presiding judge told the jury that they should find for the plaintiff if they found that Redding (in the course of the defendants’ employ) was guilty of ordinary negligence and the injury tb the plaintiff was caused thereby.

Exceptions sustained.

See note at foot of page 162 of 192 Mass.