Stewart v. President & Fellows of Harvard College , 94 Mass. 58 ( 1866 )

Chapman, J.^*

The court are of opinion that the requests of the defendants’ counsel for instructions were properly refused, and that the instructions given to the jury were correct. It is not necessary to discuss each of the points embraced in these requests and rulings, the argument of the defendants’ counsel having been limited to a part of them. The portions not adverted to in the argument are conceded to be correct.

1. The defendants contend that, as the defendants’ treasurer agreed with Reed, Gardner & Co., their lessees, to furnish the elevator and steam power for the purpose of raising and letting down merchandise, and as nothing was said about anything but merchandise, as matter of law the defendants would not be liable for an injury to one of the servants of the lessees who got upon the platform of the elevator to go down upon it, although the servant of the defendants was negligent in his management of the engine.

This would be true if the servant got upon the platform without any good reason for doing so. But the contract is to be construed reasonably. The rule that a grant shall be so construed as to authorize the grantee to enjoy all that is properly incident to the principal thing granted applies to such a case, and the contract is to be construed as including not only the right to raise and lower goods, but the right to do everything which was properly incident to that business. If it were otherwise construed, the right to raise and lower the goods themselves could not be properly and reasonably enjoyed. Whether it was properly incident to the business that a man should go up and down on the platform with the goods was a question for the jury to decide upon the evidence. The case may be illustrated by a familiar example. If the defendants had 'agreed to furnish a suitable horse and wagon for the transportation of goods, and it proved to be unsafe for a driver who was riding upon the wagon, it would be a question of fact for the jury to determine whether the proper management of the business of transporting goods required the driver to walk beside the horse or to ride upon the wagon, and thus whether the act of riding was properly incident to this business of transporting goods.

2. Upon this construction of the contract it is immaterial whether or not the defendants’ agent by whom the contract was made knew how the business of raising and lowering goods was to be managed. Whatever is properly incident to the principal thing granted or contracted for is included, whether the grantor thinks of it or not. Both parties might have been utterly ignorant of the particular methods of using the elevator; yet the terms of their agreement included all methods that might be found by experience to be properly incident to its reasonable nse.

Whether the finding of the jury was according to the evidence cannot be considered here, as the evidence is not fully reported.

3. The defendants contend that the plaintiff cannot maintain this action against them because there was no privity of contract between him and them. But no privity is necessary. Any man who is in a place where he has a right to be, and engaged in a lawful occupation, can maintain an action against a stranger who does him an injury carelessly, A traveller on a street, for example, can maintain an action against the proprietor of a lot adjoining the street, who injures him by carelessly permitting a stick of timber to fall upon him. Every man must so manage his business as not to injure another, though the other be a stranger to him. And if the injury is done by the negligence of a servant in the course of his employment, the master is liable. This subject is well discussed in Farwell v. Boston & Worcester Railroad, 4 Met. 49, cited by the defendants’ counsel.

4. It is contended, that both the plaintiff and the engineer were so far in the service of Reed, Gardner & Co. that the principle relating to fellow-servants, stated in the case cited, applies to this case. But the facts show that the engineer was the servant of the defendants, and the plaintiff was the servant of Reed, Gardner & Co., and that they were not in any sense fellow-servants of one employer.

5. Although it appeared that the machinery connected with the elevator was in the room where the plaintiff loaded the elevator, and could be seen by him, yet the court cannot say judicially, without a knowledge of the machinery and its situation, and a full statement of the circumstances of the case, that the plaintiff was careless in not turning his attention to the ma chinery and looking at it before he attempted to lower the ele vator; and they are of opinion that the question was properl) left to the jury

6. The testimony of Mr. Lawrence was properly excluded. Whether he would have made a certain contract if it had been proposed to him is not relevant to the question what contract was in fact made, nor does it tend to prove any fact which actually occurred.

7. The testimony of Mr. Fox, which was offered to prove with what view elevators are constructed by their manufacturers, was also irrelevant, and was properly excluded, because the views of the manufacturers are not material or pertinent.

8. The testimony of Mr. Whiting, which was offered to prove the custom in another store as to the use of another elevator worked by_ the same engine, was also irrelevant, for it was not pertinent to any fact in issue; and it was properly excluded.

9. The court are of opinion, on careful consideration, that the testimony of Hathaway, who was called by the plaintiff and testified that in all cases so far as he knew a man or men went up and down upon the elevator with the goods in the store of Feed, Gardner 5c Co., was inadmissible, and ought to have been excluded. The point to be proved was that the plaintiff’s going up and down on the platform was properly incident to the raising and lowering of goods. He might do this by explaining to the jury the machinery and its operation and the method of doing the business, and by the opinions of men skilled in the business, and by any other proper evidence. But a particular custom is not evidence to ■ affect strangers to it, nor does the habit of the persons who used the elevator legally tend to prove that such a use is necessary or reasonable or properly incident to their business. Yet its tendency, if admitted, would be to influence the jury on this point, so that the defendants have just cause to complain that they have been injured by its admission.

Verdict set aside, and new trial granted.

* Hoar, J. did not sit in this case.