Andrews v. Williamson

• Decision Date: 16 October 1906
• Citation: 193 Mass. 92,78 N.E. 737
• Parties: ANDREWS v. WILLIAMSON (two cases).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

193 Mass. 92

78 N.E. 737

ANDREWS v. WILLIAMSON (two cases).

Supreme Judicial Court of Massachusetts, Middlesex.

October 16, 1906

COUNSEL

Stover & Sweetser and Geo. A. & Nelson P. Brown, for plaintiff.

Chas A. Noyes and J. Ralph Wellman, for defendant.

OPINION

HAMMOND J.

These two actions were tried together. At the trial it was admitted that the defendant was the owner of the premises where the accident occurred, and that at the time of the accident the relation of landlord and tenant existed between the defendant and the plaintiff Russell E. Andrews. The evidence was undisputed that the plaintiffs began to occupy the premises in February, 1902, and had continued such occupation up to the time of the accident which occurred in June, 1903; that the building 'was a double tenement house with an upper and a lower flat,' the plaintiffs occupying the lower flat and one Davis occupying the upper flat; that there was a front entrance to the house and a side entrance; that at the side entrance there was a flight of five steps used in common by both tenants; and that these steps were out of doors being the means of entrance to the side door. The plaintiff Margaret, the wife of the plaintiff Russell, was injured by the breaking of one of these steps as she was passing over it.

At the trial it seems to have been assumed that the steps were not leased to either tenant, but were retained in the control of the defendant, and the arguments before us have proceeded upon the same assumption. The question therefore in substance may be stated thus: What is the nature of the duty owed by a landlord to a tenant as to the care and repair of a stairway over which the tenants have only a right of way in common, and which is kept within the control of the landlord?

In Quinn v. Perham 151 Mass. 162, 163, 23 N.E. 735, the law on this subject is thus stated by C. Allen, J.: 'The general rule, that a landlord does not by implication warrant the fitness for use of a demised tenement, is not applicable to a common passage owned by the landlord by which several tenements demised by him are reached. Watkins v Goodall, 138 Mass. 533. The landlord's duty in respect to such passage is that of due care to keep it in such condition as it was in or purported to be in at the time of the letting. But he is not bound to change the mode of construction. Woods v. Naumkeag Steam Cotton Co., 134 Mass. 357, 45 Am. Rep. 344. Lindsay v. Leighton, 150 Mass. 285, 22 N.E. 901, 15 Am. St. Rep. 199. If the only access to demised premises is by means of a ladder or a rough unprotected staircase which is little better than a ladder, a tenant who enters into possession knowing the facts must be content to take the risk. So if the floor of a passageway is laid with loose boards he cannot complain that it is not made fast and tight.' The phrase 'in such condition as it was in or purported to be in at the time of the letting means such condition as it would appear to be to a person of ordinary observation, and...