Berg v. Elder

• Decision Date: 01 May 1935
• Parties: BERG v. ELDER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

290 Mass. 540

195 N.E. 722

BERG v. ELDER.

Supreme Judicial Court of Massachusetts, Essex.

May 1, 1935

Exceptions from Superior Court, Essex County; Gray, Judge.

Tort action by Anna Berg against Edward E. Elder. A verdict was directed for defendant, and plaintiff brings exceptions.

Exceptions overruled.

In action by tenant's maid-servant injured when veranda railing gave way, evidence that joints were unsound, that wood seemed rather decayed, and that inside of posts was rotten, held insufficient for jury as to landlord's negligence, in absence of evidence showing any peculiar degree of exposure to weather or any other special circumstance which should have indicated to landlord that particular examination ought to have been made for concealed defects.

C. F Haywood, of Boston, for plaintiff.

J. W Sullivan and J. F. Doyle, both of Lynn, for defendant.

QUA Justice.

The plaintiff was employed as a domestic servant by a tenant of the defendant's testator. There was evidence that, while she was shaking rugs on a back veranda, she came in contact with the railing, which gave way, as a result of which she fall to the ground below and was injured. We assume in her favor that the jury could have found that the veranda and railing were parts of a common passageway provided by the landlord for the use of the tenants, and that he owed to tenants and their invitees the duty with respect to the condition of the railing which a landlord ordinarily owes under those circumstances. Anddews v. Williamson, 193 Mass. 92, 78 N.E. 737,118 Am.St.Rep. 452.

There was evidence that after the accident ‘ the two joints that came together’ in the railing were ‘ rather shaky and were not sound; that where the nails were in the railing the wood seemed to be rather decayed’ ; that nails stuck out of the top of the post to which the railing had been attached ‘ and the inside [of the post] was rotten; that the post was square and rotten around in the edge and rusty nails were sticking up.’

This does not present a very clear picture of the existing conditions, but it is the only evidence in the record which plausibly can be argued to show negligence on the part of the defendant's testator. More cannot be assumed without proof. The evidence relates entirely to conditions observable after the railing had fallen. It is consistent with this evidence that the decay referred to was under the exposed surface of the wood and not visible until after the railing had broken away from...