Home MORTON D. WAINWRIGHT vs. HENRY M. JACKSON & another.

291 Mass. 100

May 14, 1935 - May 16, 1935

Suffolk County

Present: RUGG, C.J., PIERCE, DONAHUE, LUMMUS, & QUA, JJ.

In an action in the Municipal Court of the City of Boston, a request by the plaintiff for a ruling that he was entitled to recover on all the evidence was properly refused, both because it was not in conformity with Rule 28 of the Municipal Court of the City of Boston (1932) and also because the evidence raised questions of fact as to which findings for the plaintiff were not required.

Assuming that failure by the landlord of an apartment building to provide appliances for extinguishing fires, in violation of G. L. (Ter. Ed.) c. 143, s. 24, was evidence of negligence on his part toward a tenant in the building who was injured while escaping from a fire therein, the landlord would not be liable to the tenant in tort unless there was a causal relation between such failure and the tenant's injuries; and a finding that there was such a causal relation was not required, where the fire started in the basement of the building and gained headway so rapidly that nothing could be done to stop it except to send for the fire department, and neither that tenant nor any of the others even tried to find a fire fighting appliance to use as a means of protection when the fire started.


TORT. Writ in the Municipal Court of the City of Boston dated May 29, 1933.

The action was heard in the Municipal Court by Brackett, J. Material findings by him are stated in the opinion. He found for the defendants. A report to the Appellate Division was ordered dismissed. The plaintiff appealed.

M. Witte, for the plaintiff.

J. H. Dooley, for the defendants.


RUGG, C.J. The plaintiff in this action of tort seeks to recover compensation for personal injuries sustained by him as a result of alleged negligence of the defendants.

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The contention of the plaintiff is that the defendants, owners of an apartment house in which the plaintiff was a tenant, failed to provide the fire fighting appliances required by G. L. (Ter. Ed.) c. 143, s. 24, that that failure constituted negligence, and that such negligence was the cause of his injuries. The trial judge found that the plaintiff was an occupant of an apartment in a house owned by the defendants and was injured by reason of jumping from a window on the second floor of the building in order to escape injury by fire. The defendants neglected to perform the duty imposed on them by G. L. (Ter. Ed.) c. 143, s. 24, requiring that the basement and each story of a building like that in which the plaintiff lived "shall be supplied with means of extinguishing fire . . . and such appliances shall be kept at all times ready for use and in good condition." On the day in question fire of unknown origin star.ted in the basement of the building. About ten o'clock in the evening the janitor of the building went to the basement, banked his fires, and returned to his apartment which was on the second floor of the three story building. After being in his apartment about three or five minutes he smelled smoke, found that the basement was a mass of flames and smoke and that it was impossible for him to go down. The fire gained headway so rapidly that he could not do anything to stop it except to telephone the fire department, which was done at once. The trial judge found that there was no negligence on the part of the plaintiff in jumping from the window of his apartment, but upon all the evidence he was "unable to find affirmatively that the defendants' failure to provide appliances for fire protection as required" by the statute "was the proximate cause of or in any way causally related to the injuries sustained by the plaintiff" since there was no evidence that the plaintiff or any of the other tenants tried to use a fire extinguisher or even to find one to use as a means of protection when the fire broke out.

The trial judge denied the plaintiff's request for ruling to the effect that "On all the evidence the plaintiff is entitled to recover," This request was not in conformity to that

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part of Rule 28 of the Municipal Court of the City of Boston (1932) of this tenor: "No review as of right shall lie to the refusal of a request for a ruling 'upon all the evidence' in a case admitting of specification of the grounds upon which such request is based unless such grounds are specified in the request, and then only upon the grounds so specified." It was possible to make requests containing specifications touching the points argued by the plaintiff. Reid v. Doherty, 273 Mass. 388 . Holton v. American Pastry Products Corp. 274 Mass. 268 . Duralith Corp. v. Leonard, 274 Mass. 397 , 400.

Passing that point, however, and considering the case at large, the plaintiff shows no error of law. It is manifest that questions of fact were raised on this record and that a ruling that the plaintiff was entitled to recover as matter of law could not rightly have been granted. Confessedly there was violation of a criminal statute on the part of the defendants. It may be assumed that that statute is available in appropriate cases for the benefit of tenants in an apartment house. Jones v. Granite Mills, 126 Mass. 84 . The plaintiff therefore belonged to the class entitled to relief if suffering injury proximately caused by violation of the statute. Berdos v. Tremont & Suffolk Mills, 209 Mass. 489 , 492. Guinan v. Famous Players-Lasky Corp. 267 Mass. 501 , 516. Milbury v. Turner Centre System, 274 Mass. 358 . Nevertheless, violation of a criminal statute is merely evidence of negligence. In order to be the basis of liability there must be established by evidence a causal connection between the violation of the statute and the injury to the plaintiff. Gordon v. Bedard, 265 Mass. 408 , 411. Falk v. Finkelman, 268 Mass. 524 , 527. O'Connor v. Hickey, 268 Mass. 454 , 459. Damon v. Scituate, 119 Mass. 66 . Atchison, Topeka & Santa Fe Railway v. Toops, 281 U. S. 351, 354. The general rule is that one cannot be held liable for negligent conduct unless it is causally related to injury of the plaintiff. Violation of law is regarded as a cause of injury only when the forbidden element in the conduct alleged to be negligent is the effective cause of the damage sought to be fastened on the defendant, Stowe v. Mason,

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289 Mass. 577 , 583. Hathaway v. Huntley, 284 Mass. 587 , 592. Bratton v. Rudnick, 283 Mass. 556 , 559. Stone v. Boston & Albany Railroad, 171 Mass. 536 . The trial judge was not required to find that the violation of the statute by the defendants had a causal connection with the harm to the plaintiff. Whether it did or not was a question of fact. The circumstances of the fire already narrated warranted the finding of the trial judge. The case at bar is governed by Ford v. Trident Fisheries Co. 232 Mass. 400 . New York Central Railroad v. Grimstad, 264 Fed. Rep. 334.

Order dismissing report affirmed.