Some of our own decisions, but not those most recent, contain language which seems consistent with this view. See, for example, Looney v. McLean, 129 Mass. 33, 35; Marwedel v. Cook, 154 Mass. 235, 236; Coupe v. Platt, 172 Mass. 458; Wright v. Perry, 188 Mass. 268, 270; Hamilton v. Taylor, 195 Mass. 68, 71; Morong v. Spofford, 218 Mass. 50. The two possible views are stated in the dissenting opinion of Justice Holmes in O'Malley v. Twenty-five Associates, 170 Mass. 471, 478, from which it would seem that the three dissenting justices at least regarded the matter as then (1898) still open.
The plaintiff while a witness at the trial pointed out to the jury that there was as much light in the warehouse at the time of the accident as there would be in the court room (where the shades were partially drawn) if the electric lights were off at the time he was testifying — on a clear, pleasant morning in June. He assumed that there was an elevator in the warehouse but he could rely to a reasonable extent upon the expectation that it would be equipped with a gate. Gordon v. Cummings, 152 Mass. 513, 518. Hamilton v. Taylor, 195 Mass. 68, 70. The light might have been ample to enable him to discover easily a gate if there were one. Lyon did not inform him of any danger when he requested him to "finish the work of getting those hops out." It cannot be said as matter of law that the plaintiff was contributorily negligent in proceeding as he did in the warehouse.
It is plain from the circumstances that the question of the plaintiff's due care was for the jury. Hamilton v. Taylor, 195 Mass. 68. Follins v. Dill, 221 Mass. 93, 98. Exceptions overruled.
In Murphy v. Avery Chemical Co. 240 Mass. 150, 152, it was held that one returning from delivering goods to the owner of a factory, whose premises were crossed by a railroad, was upon the railroad crossing at the implied invitation of the factory owner. See also Cavanagh v. Block, 192 Mass. 63, 64; Hamilton v. Taylor, 195 Mass. 68, 71; Barber v. C.W.H. Moulton Ladder Co. 231 Mass. 507, 509; Sullivan v. Saugus, 305 Mass. 127, 130; Adams v. George Lawley Son Corp. 314 Mass. 87, 91. The restrictions barred the use of the lots for commercial purposes, but the purchase and delivery of milk and eggs for consumption by the occupants of cottages upon the lots was not a use which amounted to conducting a business on the lots or changed their use from a residential to a commercial one. It was merely incidental to the maintenance of the home.
Nor does the evidence warrant a finding that the plaintiff was at the place of his injury through an implied invitation of the defendants by reason of the physical construction of the building or portions thereof or of any apparent preparation or adaptation of the elevator for his use. Compare Gordon v. Cummings, 152 Mass. 513, 517; Marwedel v. Cook, 152 Mass. 235, 237; Plummer v. Dill, 156 Mass. 426, 427; Hamilton v. Taylor, 195 Mass. 68, 71; Stone v. Lewis, 215 Mass. 594, 597; Maran v. Peabody, 228 Mass. 432; Chestnut v. Sawyer, 235 Mass. 46, 50. The elevator car obviously was designed and furnished for the carriage of freight.
Neither do they argue that the absence of effective guard and light was due to the transient misconduct of some recent user of the elevator, without fault on the part of those having responsibility for its care, as in Hunter v. Goldstein, 267 Mass. 183, Prushensky v. Pucilowski, 269 Mass. 477, Todd v. Winslow, 278 Mass. 588, and McBreen v. Collins, 284 Mass. 253. They do not argue, either, that the plaintiff was negligent as matter of law. Wright v. Perry, 188 Mass. 268. Hamilton v. Taylor, 195 Mass. 68, 70, 71. Taylor v. Hennessey, 200 Mass. 263, 265. Follins v. Dill, 221 Mass. 93, 98, 99. Lally v. A.W. Perry, Inc. 277 Mass. 463, 465.
Citing: Montague v. Hanson, 38 Mont. 376, 99 P. 1063; Wilsey v. Jewett Bros. Co., 122 Iowa, 315, 98 N.W. 114; Christopher Co. v. Russell, 63 Fla. 191, Ann. Cas. 1913C, 564, 565, 58 So. 45; Pauckner v. Wakem, 231 Ill. 276, 83 N.E. 202; Shawnee v. Drake, 69 Okla. 209, L.R.A. 1918D, 813, 171 P. 727; Downing v. Merchants Nat. Bank, 192 Iowa, 1250, 20 A.L.R. 1138, 1250, 184 N.W. 722; Conway v. Chas. H. Wood Co., 113 Minn. 476, 129 N.W. 1045; Gardner v. Waterloo Cream Separator Co., 134 Iowa, 6, 111 N.W. 316; Fort v. Reid Ice Cream Co. (N.J.), 119 A. 638; 3. Liability of proprietor for injury to person other than passenger by elevator, see notes in Ann. Cas. 1912d 531; Ann. Cas. 1915B, 572. Hamilton v. Taylor, 195 Mass. 68, 80 N.E. 592; Kress Co. v. Markline, 117 Miss. 37, 77 So. 858. It is admitted that plaintiff did not come to the premises at the express invitation of defendants and, of course, on the other hand, it must be admitted that coming as he did to purchase goods he came at its implied invitation; but it is our contention that such implied invitation was only one to use the entrance and exit and such portions of the premises as were provided for customers, and did not include the privilege of wandering around blindly in the warehouse of the defendant company.
On the evidence the jury could find that the gate and its appliances were in an improper and unsafe condition and that the defendants by the exercise of reasonable care could have discovered and remedied this condition before the accident. Hamilton v. Taylor, 195 Mass. 68. Follins v. Dill, supra. Plainly the issue of the plaintiff's due care was for the jury. Exceptions sustained.
" In Hamilton v. Taylor, 195 Mass. 68, 80 N.E. 592, the second paragraph of the syllabus is applicable to this case. It is as follows:
The gate fell into its place when his companion, Cole, walking behind him, was about two feet from the well. Cary v. Arlington Mills, 148 Mass. 338. Hamilton v. Taylor, 195 Mass. 68. Humphreys v. Portsmouth Trust Guaranty Co. 184 Mass. 422. See Hydren v. Webb, 219 Mass. 542, 546.