Bowe v. Hunking

• Decision Date: 07 September 1883
• Citation: 135 Mass. 380
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: William Bowe, administrator, v. C. D. Hunking & others

135 Mass. 380

William Bowe, administrator, v. C. D. Hunking & others

Supreme Court of Massachusetts

September 7, 1883

Argued November 17, 1882 [Syllabus Material]

Suffolk. Tort for personal injuries occasioned to the plaintiff's intestate, Eliza M. Bowe, by a defective stairway in a tenement owned by the defendants, and of which the intestate and her husband, the plaintiff, were tenants. Trial in the Superior Court, before Aldrich, J., who reported the case for the determination of this court, in substance as follows:

The action was originally brought by Eliza M. Bowe, and after her death was prosecuted by her husband as administrator.

It was admitted that the defendants were the owners of the tenement in question; but the interest of Mrs. Sarah S. Hunking, one of them, was that of tenant in dower (unassigned), and she received one third of the income thereof. The other defendants were tenants in common, subject to this right of dower.

There was evidence tending to show, that, on May 18, 1878, the plaintiff hired, as a tenant at will, through C. D. Hunking one of the defendants, at a monthly rent of $ 15, this tenement, it being the southerly half of house No. 72 Main Street, in Haverhill; that C. D. Hunking had general charge of this estate, including the leasing of the same and the collection of the rents thereof for himself and his mother, said Sarah S. Hunking, and his sisters, the other two defendants; that the plaintiff and his family moved into said tenement on May 20, 1878; that the stairs in question were back stairs leading from an entry, not well lighted, on the ground floor, to the second floor; that the stairs were cased in from the second stair from the bottom to the top; that there was a door shutting across and upon the tread of this second stair; that the floor of the entry extended upon a level underneath this second stair, and this space under the stairs was not lighted; that the plaintiff examined the rooms of the house before hiring it, but did not go over these stairs; that he had never been over these stairs; that the family remained in this house as tenants until June 18, 1878, when the plaintiff's wife, in coming down this flight of stairs in the evening, with a lamp in one hand and a pail in the other, stepped upon this second stair, the tread of which then gave way, and her right foot went through this stair, and she was thrown on to the landing at the foot of the stairs, and received the injuries complained of.

There was no evidence that she knew of any defect in this stair before the injury, or that she had ever been over these stairs. She testified that she did not remember to have noticed anything unusual about this stair before her injury; and there was evidence from a witness (not of the plaintiff's family) who had been over the stairs prior to June 18, that this stair "squeaked" as she passed over it; but there was no evidence that any of the plaintiff's family had noticed anything peculiar about the defective stair, or that anything had happened to change the condition of the stairs between the time of the hiring and the time of the accident. The plaintiff testified that he had never noticed these stairs prior to the injury; that, immediately after the injury, he examined the place of the accident, and found that the tread of the second stair had been sawed, about four inches from each end, across to within about an inch of the back side of it, and lengthwise cut out about an inch from and parallel to the back side of the tread; that the piece thus sawed out had fallen in two pieces, one upon the next step below, and one into the hole left in the stair and on to the floor underneath; and that there was also in the hole another piece of wood, which he thought from its appearance had been used to support the portion of the tread sawed out. The piece of the tread which had fallen on to the stair below was produced in court, and the plaintiff testified that it was in the same condition as when picked up by him; that it was not, nor was the other piece of the tread which he picked up, in any way nailed upon the riser of the stairs, nor were any of the pieces nailed to each other, or to any part of the stair, or to the floor. It also appeared that there was no stringer between these transverse saw cuts to support the stair, and that the stairs were painted.

For the purpose of showing that the defendants knew of this dangerous and defective condition of the stair, the plaintiffs introduced the deposition of the plaintiff's wife, who testified that, after her fall, C. D. Hunking said he noticed there was a defect in the stair; he said he stepped on it right in the centre, and it would bear anybody's weight, he thought. It bore his weight, and he thought it would anybody's.

The plaintiff testified on this subject as follows: "The first time I saw Dr. Hunking to speak to him, after I moved into the house, was a day or two after June 29. He came into the house, and I then asked him to go and look at those stairs,--the step which was sawed in the back entry. I asked him how it came to be sawed out in that way. He said, 'I always supposed that Mr. Morrill (the man who lived in the house before) sawed it out for the purpose of storing away bottles, as he was a liquor inspector or agent.' I said to him, 'You knew they were sawed out, then?' 'Yes,' he said; 'but I stepped on that step and it bore my weight, and I thought it would bear anybody's.' He said he stepped on it in the centre. My son was present. At another time he said he knew there was a defect in the stair; the language he used was similar to that above."

On cross-examination, the following questions were asked: "He told you he had known that the stairs had been sawed, but he supposed they would bear anybody?" And the plaintiff answered, "He acknowledged that to me."

"He said, whenever he said anything about it, that he supposed it would bear anybody?" And the plaintiff answered, "Yes, sir, he did."

William E. Bowe, a son, and Lillie E. Bowe, a daughter of the plaintiff, testified substantially as their father did.

There was no other evidence on the subject of the knowledge of C. D. Hunking of the condition of the stair, and no evidence of knowledge of either of the other defendants, unless the evidence of what C. D. Hunking knew was evidence against them.

Upon this evidence, the defendants contended, and asked the judge to rule, as matter of law, that the plaintiff could not maintain the action; and the judge so ruled, and directed a verdict for the defendants. If the ruling was right, judgment was to be entered upon the verdict; otherwise, the verdict to be set aside and a new trial granted.

Judgment upon the verdict.

R. D. Smith & F. W. Kittredge, for the plaintiff.

S. B. Ives, Jr., for the defendants.

Field, J. W. Allen & Holmes, JJ., absent.

OPINION

Field, J.

There is no warranty implied in the letting of an unfurnished house or tenement that it is reasonably fit for use. Dutton v. Gerrish, 9 Cush. 89. Foster v. Peyser, 9 Cush. 242. Doupe v. Genin, 45 N.Y. 119. Hart v. Windsor, 12 M. & W. 68. Sutton v Temple, 12 M. & W. 52...