See Judson v. American Ry. Exp. Co. 242 Mass. 269, 271; Levesque v. Hildreth Rogers Co. 276 Mass. 429, 434; Curtis v. Kiley, 153 Mass. 123, 126. No negligence for which the defendant is responsible being shown, the order of the Appellate Division was right. Compare Peay v. Reidy, 321 Mass. 455, 458; Henebury v. Cabot, 288 Mass. 349, 352-353; Morgan v. Merchants Natl. Bank, 314 Mass. 601, 604; Chalfen v. Kraft, 324 Mass. 1, 5; Ross v. Broitman, 338 Mass. 770, 773; Globe Leather Shoe Findings, Inc. v. Golburgh, 339 Mass. 380, 383. Order of Appellate Division affirmed.

Upon completion of the repairs he notified the plaintiff that the job was finished and that "everything was O. K." The plaintiff shortly thereafter when entering the room where the repairs had been made stepped on a nail protruding from a board which had been left there by the defendant without the plaintiff's knowledge. It was held that these facts warranted a finding of negligence. If in the case at bar the pipes had been placed in the kitchen without the plaintiff's knowledge the legal consequences might be different. See Henebury v. Cabot, 288 Mass. 349; Bacon v. Jaques, 312 Mass. 371, 373-374; Peay v. Reidy, 321 Mass. 455, 458, 459. Exceptions overruled.

The plaintiff can rely upon the simple duty of the defendant to refrain from negligent conduct causing injury to the plaintiff. Watkins v. Goodall, 138 Mass. 533. Caruso v. Lebowich, 251 Mass. 477. Prushensky v. Pucilowski, 269 Mass. 477, 480. Henebury v. Cabot, 288 Mass. 349. DeCunto v. Broadway Savings Bank, 306 Mass. 119. Bacon v. Jaques, 312 Mass. 371, 373-374. There was evidence of a violation of this duty by the defendant's employee White. The jury could find that although White knew that the elevator had always previously been left at the first floor, where it would be natural for a departing operator to leave it, and although White on this occasion told the plaintiff that he was going to leave it at the first floor, and although White knew that the plaintiff would shortly return and in the darkness would open the door to the elevator well, nevertheless White took the unusual course of leaving the elevator at the third floor and leaving only an unoccupied well at the first floor. Doubtless White could rely to some extent upon the plaintiff looking out for himself, but it seems to us that the danger could be found to be so serious and the likelihood that the plaintiff in the performance of a routine task in what could be found to be total darkness w

Jacobsen v. Simons, 217 Mass. 194, 196. O'Brien v. Harvard Restaurant Liquor Co. Inc. 310 Mass. 491, 494. The defendant rightly does not question the authority of the attendant to speak for him. Denny v. Riverbank Court Hotel Co. 282 Mass. 176. Sokoloski v. Splann, 311 Mass. 203, 206. It could be found that the plaintiff was induced by what the attendant said to go through the wrong door into the lubrication room. Statkunas v. L. Promboim Son Inc. 274 Mass. 515, 518, 519, 520. Manell v. Checker Taxi Co. 284 Mass. 151, 152. Henebury v. Cabot, 288 Mass. 349, 352. Hart v. M.S. Kelliher Co. 308 Mass. 213, 215. Ryan v. Gray, ante, 259. See Palmer v. Boston Penny Savings Bank, 301 Mass. 540, 543; Gordon v. Freeman, 193 Minn. 97. It likewise could be found that there was a failure to warn the plaintiff of attendant dangers not obvious to an ordinarily intelligent person which were known or in the exercise of reasonable care should have been known to the defendant.

See Coupe v. Platt, 172 Mass. 458; Webber v. Sherman, 254 Mass. 402, 403. No argument has been made that the plaintiff was not in the exercise of due care. If the jury made these possible findings the defendant would properly be held liable for the negligence of its own employee. Watkins v. Goodall, 138 Mass. 533, 536. Caruso v. Lebowich, 251 Mass. 477, 478, 479. Henebury v. Cabot, 288 Mass. 349, 352. Martin v. Rich, 288 Mass. 437. Exceptions sustained.

The case is not one where the plaintiff, rightfully using a passageway or walk intended for that purpose, is injured by some obstruction in, upon or near it. See Riley v. Lissner, 160 Mass. 330; O'Neil v. National Oil Co. 231 Mass. 20; Henebury v. Cabot, 288 Mass. 349; Rudomen v. Green, 299 Mass. 485. At most, the duty owed the plaintiff by the defendant in the circumstances disclosed was to refrain from wilful, wanton and reckless conduct.

The conduct of these clerks was evidence of a breach of the duty that the defendant owed to the plaintiff. Hendricken v. Meadows, 154 Mass. 599. Judson v. American Railway Express Co. 242 Mass. 269. Grogan v. O'Keeffe's Inc. 267 Mass. 189. Henebury v. Cabot, 288 Mass. 349. McCarthy v. Great Atlantic Pacific Tea Co. 292 Mass. 526. Jennings v. First National Stores, Inc. 295 Mass. 117. The defendant's counsel interrupted the argument of the plaintiff's counsel upon the failure of the defendant to produce as witnesses the clerks who were in the store at the time of the accident, on the ground that there was no evidence that they were in the defendant's employment or subject to its control.

There is grave doubt, to say the least, whether the plaintiff was not guilty of contributory negligence as matter of law in groping in a dark hallway for an elevator gate which he knew might not be in place, when he had only to go out to the store next door to obtain a guide. Benton v. Watson, 231 Mass. 582. Burke v. Crimmins, 256 Mass. 14. Lanstein v. Acme White Lead Color Works, 285 Mass. 328. Henebury v. Cabot, 288 Mass. 349. Osgood v. Therriault, 290 Mass. 513. Perry v. Loew's Boston Theatres Co. 291 Mass. 332. If the plaintiff had been a tenant, it might well be contended that the defect which caused the injury existed and was known to him at the time he hired the tenement, and consequently that there was no breach of duty to him. Sordillo v. Fradkin, 282 Mass. 255, 257.

Since the presence of the plaintiff in the restaurant of the defendant was a benefit to each, the defendant was under the obligation to use reasonable care to see to it that portions of the premises where the plaintiff was expressly or impliedly invited to go were reasonably safe for her use. Jacobsen v. Simons, 217 Mass. 194. Del Rosso v. F.W. Woolworth Co. 293 Mass. 424. The defendant was also obligated not, without warning, to expose the plaintiff to a danger existent on the premises which was known or ought to have been known by the defendant but was not known or was not of such a character that it should have been known by the plaintiff. Statkunas v. L. Promboim Son Inc. 274 Mass. 515, 520. Kelley v. Goldberg, 288 Mass. 79, 81. Henebury v. Cabot, 288 Mass. 349, 352, 353, and cases cited. There was no evidence on which it could be found that the defendant actually knew that the balloons when inflated with the gas purchased by the defendant possessed the qualities and characteristics described by the expert witness and manifested at the time of the explosion which resulted in the plaintiff's damage.