Callahan v. New England Telephone & Telegraph Co.

De Cotjrcy, J.

The plaintiff was a telephone operator in the employ of the defendant at its Oxford Exchange, so called, which was maintained on the third floor of the building numbered 15 on Oxford Street in Boston. On the second floor of this building there was a room one part of which was used as a resting room and the other part exclusively as a lunch room, the respective parts being separated from each other by screens. In this lunch room were two tables, one for seating sixteen persons and the other for seating six; a number of ordinary lunch room chairs with cane seats and bent wood backs, having a circular wooden band fastened to the inside of the legs between the seat and the floor] a gas stove, cooking utensils, dishes and a sink. The defendant gratuitously furnished, in addition to these, coffee or cocoa during the luncheon period, to such operators as cared to take it, and a matron who supervised the preparation of the same; and also provided certain simple sick room remedies.

The plaintiff was employed at this Oxford Exchange for about five years up to the date of her accident on January 24, 1911. On that day, at the luncheon hour, she placed on the larger of *336 the two tables her luncheon and a cup of coffee received from the matron, and drew out from under the table one of the chairs. While she was in the act of seating herself the chair collapsed, “the back and top of the chair fell back and the front . . . went in a different direction,” and the plaintiff was injured by falling to the floor.

While conceding that we must take the view of the evidence that is most favorable to the plaintiff, the defendant contends that it could not be found that the plaintiff was more than a licensee at the time and place of the accident. If so, it seems clear that there was no such wilful or wanton conduct as would constitute an actionable breach of duty by the defendant; and the jury were instructed accordingly. There was evidence, however, on which the jury could find that the right to use the lunch room and its equipment was included in the contract of her employment. Both at the defendant’s employment bureau, where substantially all the elements of the contract were specified, and at the exchange when she entered upon her duties, according to the plaintiff’s testimony she was told that the company was to furnish these things in addition to the money compensation. If her version was believed, the defendant owed her the legal duty, among other things, of exercising reasonable care to maintain the chairs in a safe and suitable condition. Condon v. Gahm, 208 Mass. 339 . Foley v. J. R. Whipple Co. 214 Mass. 499 .

There was evidence of negligence in the performance of this duty. The breaking of the chair when it was being properly used for the purpose for which it was furnished warranted the jury in inferring at least that it was defective and unsafe; and it could be found that its condition would have been discovered before the accident, by proper inspection. The chair itself was not produced at the trial. Apparently it had been in the defendant’s care and control, and in constant use for more than five years. In the absence of explanation to account for the breaking of the chair the jury reasonably could infer, under all the circumstances, including the nature of the break, that the failure to discover and remedy the defect was due to negligence on the part of the defendant. Filosi v. Boston Woven Hose & Rubber Co. 214 Mass. 408 .

As the only question involved is whether the case rightly was *337 submitted to the jury, * it becomes unnecessary to considerwhether, even if the lunch room and its appliances had not been furnished as a part of the contract of employment, the defendant could be found liable on the ground that it invited the plaintiff to use the lunch room in connection with its business. The plaintiff’s due care is not in controversy. Under the terms of the report the entry must be The case was submitted on briefs. S. L. Powers & E. K. Hall, for the defendant. F. Juggins, J. F. Scannell & H. A. Wilson, for the plaintiff.

Judgment on the verdict.

The case was tried before Dubuque, J., who submitted it to the jury upon two common law counts. The jury found for the plaintiff in the sum of SI,200, and the case was reported to this court, judgment to be entered on the verdict if the case properly was submitted to the jury; otherwise, judgment to be entered for the defendant.