March 14, 1900.
May 21, 1900.
Present: HOLMES, C.J., KNOWLTON, MORTON, LATHROP, BARKER, JJ.
A person who, entering a building where he never has been before, without knocking or ringing a bell, finds himself in darkness, and instead of waiting where he is and endeavoring to attract the attention of the family, or retreating, chooses to try to find his way, and while so doing falls down the cellar stairs, is not in the exercise of due care.
TORT, for personal injuries sustained by the plaintiff on November 3, 1896, by reason of a fall occasioned by the alleged defective, dangerous, and improper construction of a flight of stairs and the entrance thereto, in a building owned by the defendant. Trial in the Superior Court, before Hardy, J., who directed the jury to return a verdict for the defendant; and the plaintiff alleged exceptions, which appear in the opinion.
J.O. Burdett F.M. Forbush, for the plaintiff.
C.R. Elder, for the defendant.
We find it unnecessary to consider the numerous questions which arise in this case, as a majority of the court is of opinion that the plaintiff was not in the exercise of due care. He entered a building where he never had been before, without knocking or ringing a bell. He found himself in darkness, and instead of waiting where he was and endeavoring to attract the attention of the family, or retreating, he chose to try to find his way, and while so doing fell down the cellar stairs.
The case differs from Parker v. Barnard, 135 Mass. 116, where a policeman entered a building in the night time in the discharge of his duty, and was injured by falling down an elevator well, which was left unguarded, in violation of a statute. It differs also from Gordon v. Cummings, 152 Mass. 513, where a letter carrier, also in the discharge of his duty, in attempting to enter a building in the night time, mistook an unguarded elevator well, which opened upon the street, for the main entrance to the building, and stepped into it and was injured.