McMANUS v. THING

Negligence. Elevator. Landlord and Tenant. If the lessee of a building containing a freight elevator sublets portions of the building, with the agreement and understanding that the subtenants and their employees as well as the lessee and his employees may use the elevator but that when any one of the occupants of the building is using the elevator he shall have the exclusive use of it until his use is completed, and if, while a servant of one of the subtenants is using the elevator and has not completed such use, a servant of the lessee at his own request is permitted by the servant of the subtenant to come upon the elevator with a truck holding a large crate, whereupon the servant of the subtenant starts the elevator and the servant of the lessee is injured, in an action by the person injured against the master of the servant who started the elevator, the plaintiff is in the position of a mere licensee and cannot recover unless he shows that the servant of the defendant injured him wilfully or acted with such reckless wantonness as to amount to a wilful wrong.

LORING, 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. Bjornquist v. Boston Albany Railroad, 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 to the plaintiff was caused thereby.

Exceptions sustained.