This is an action of tort brought by an employee of the defendant to recover for injuries received by reason of the fall of an elevator or dumb waiter in a building owned by the defendant, upon which the plaintiff had stepped for the purpose of making repairs.
The evidence tended to show that one Spry was a superintendent and that his principal duty was that of superintendence; that by reason of the violent contact of a table, while being carried up upon the elevator, with the top of the elevator well, a rope holding the elevator parted and as thus disabled the elevator was at the third floor; that the plaintiff and Spry saw that the rope had parted and that Spry determined to repair it. As to the accident the plaintiff testified that he said to Spry, “Hold on, Joe, while I run down the stairs and up the ladder to the motor platform; I can pass the end of the cable up to' you from there;” that Spry said, “It is all right, Tom (referring to the plaintiff). Jump on the car. It will be all right;” that he (the plaintiff) hesitated; that Spry said, “Jump on the car it will be all right.” The plaintiff then jumped on the car and it immediately dropped to the bottom of the well. The evidence tended further to show that the plaintiff believed and had reason to believe that there *373were safety devices to prevent the elevator from falling and that he stepped upon the elevator in reliance upon the assurance by Spry that such an act was safe. Under all the circumstances the jury would have been justified in finding that the plaintiff was in the exercise of due care, that he did not appreciate and assume the risk, and that the order was negligent
There was therefore a case for the plaintiff, at least upon the second count of his declaration, unless the defendant is saved by the law relating to charitable corporations as set forth in a long line of decisions in this Commonwealth. See McDonald v. Massachusetts General Hospital, 120 Mass. 432; Farrigan v. Pevear, 193 Mass. 147, and cases cited. But we do not think it can be thus relieved. Even if it be assumed that the defendant is a charitable institution within the meaning of the term as used in this branch of the law, still there is one fatal flaw in its case.
The defendant had let that part of the building where the accident occurred, to a tenant for purposes entirely disconnected with those for which the defendant was chartered. The business of the tenant was not charitable. Moreover at the time of the accident both the plaintiff and Spry by the authority of the defendant were engaged exclusively in assisting the tenant, or rather in carrying out the contract made with the tenant by the defendant. It is entirely immaterial that the money received for rent was to be applied to the general charitable purposes of the society. At the time of the accident the work in progress was in no way connected with charity, even in its more liberal sense, and the rule of exemption invoked by the defendant is not applicable.
Judgment for the plaintiff for $2,500.