Aldworth v. F. W. Woolworth Co‪.‬

FIELD, Justice. This is an action of tort to recover compensation for personal injuries alleged to have been sustained by the plaintiff in falling from a fire escape attached to a building occupied by the defendant. The bill of exceptions states that the declaration is in two counts, both alleging that the plaintiff was lawfully on the premises in the performance of his duty as a fireman, the first alleging that the defendant was negligent in allowing the fire escape to be in a defective, decayed, unsuitable and unsafe condition, which condition was then and there known to the said defendant or might have been known to it by exercise of proper care and diligence; the second count alleging that the defendant was negligent in allowing the fire escape to be in a defective, unsafe, and dangerous condition for lack of good repair and not ready for use. No contention is made that the evidence did not warrant findings that the accident occurred and that the plaintiff sustained personal injuries. It was agreed that at the time of the accident the plaintiff was engaged in his employment as a private in the fire department of the City of Worcester acting under orders of his superior officer in fighting a fire in a building * * * separated by a twelve foot passageway from the building occupied by the defendant * * * that the premises so occupied were used for mercantile purposes with more than ten employes employed therein. The Judge ruled that in this case the defendant owes no duty to the plaintiff except to refrain from wilful and wanton injury, and to abstain from retaining on his premises any pitfalls or traps, and on that ruling ordered a verdict for the defendant. The plaintiff duly excepted to the ruling of the Court in ordering a verdict for the defendant.