Bergeron v. Forest

• Decision Date: 19 July 1919
• Citation: 124 N.E. 74,233 Mass. 392
• Parties: BERGERON v. FOREST.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

233 Mass. 392

124 N.E. 74

BERGERON

v.FOREST.

Supreme Judicial Court of Massachusetts, Worcester.

July 19, 1919.

Exceptions from Superior Court, Worcester County; George A. Sanderson, Judge.

Action by Frank H. Bergeron, administrator, against Arthur Forest. Verdict forplaintiff, and defendant excepts. Exceptions sustained as to certain counts of the declaration, and new trial ordered to be confined to such counts.Plaintiff claimed and introduced evidence to show (1) that there was a custom in ‘the Cleghorn’-a business and residence section of Fitchburg-whereby in instances of hiring such as has been stated, at the time of the hiring and from thence continually, it was the duty of the landlord to make repairs upon railings of piazzas which were a part of the tenement let; (2) that during the tenancy and before the accident a binding agreement was made between Eli Bergeron and the defendant, whereby the latter agreed to repair the piazza railing which gave way.

Eli Bergeron testified as follows: That he was living at 7 Blais court with his wife at the time of her fall and occupied a tenement of four rooms on the second floor of defendant's three-story house; that he had lived in the tenement at 7 Blais court about three years, had hired the tenement from defendant, and that while he lived there he saw two of Mr. Forest's sons collect the rent; the name of one was Willie; the name of the other he did not know; and that Willie came the most often to collect the rent.

He further testified that while he was living in the house he saw some nails that were put in the front of the piazza; that Willie Forest put the nails in; that he had had a talk with Willie before the accident, and that he had had a talk with his wife in the presence of his family; that his wife told him that the piazza did not look well; that later he had a second conversation with his wife in the presence of his daughter and son.

He further testified that on the day when his wife fell off the piazza he saw Arthur Forest, the defendant, at his house; that his daughter was there and his niece; that Arthur Forest said that he was sorry, and that he (himself) said, ‘For the sake of a few nails it would have saved her life;’ that he did not say anything about the piazza railing, about the condition it was in at that time, about anything being said to him; that the only conversation that he had with him was that ‘for the sake of a few nails the accident would not have happened;’ that he did not say anything about the piazza railing.

By Mr. O'Connell:

‘Q. During the time that you lived in the house and that tenement, were there any repairs made on that piazza? Yes or no to that question. A. Once in a while. Not on the end which broke, but on the other one, on the rails he would put nails on.

‘Q. You mean the rails, the balusters (indicating)? A. Away down on the west side.

‘Q. You mean on the front? A. Right on the front he might have fixed some, a few nails. That while they lived in the tenement, some repairs were made on the piazza once in a while, but not on the end that broke; that before it broke I noticed that the rail that fell at the end next to the post was in bad condition; that he noticed the rail next to the house (the rail that fell) was in bad condition.’

On cross-examination he testified that on the end that his wife fell from no repairs were made as he remembered; that no repairs were ever made on that end; that all the repairs that were ever made on the piazza were on the front.

On redirect examination, when asked if he knew whether or not any repairs were made on that piazza of his own knowledge, he testified that he saw ‘him’ put a few nails on the front of the piazza, and he testified that he did not say that no repairs were made on the south end.

On being recalled, after the defendant and a number of witnesses had testified, answers and interrogatories read, and the rent receipts introduced in evidence, he testified that probably five or six months before his wife died he had a conversation with Willie Forest about making repairs on the piazza; that it was in danger, showing him right at the end of the piazza it was getting pretty well worn out; that he spoke to him four or five times; that he asked him to fix the piazza, told him that the piazza railing was dangerous, and showed him with his fingers that the top railing was in danger; that his daughter and son were with him, and he pointed to where the rail was at the end of the post; that Willie Forest said that he ‘would see his father and try to get it fixed,’ and that nothing else was said; that at another time he told Willie it ought to be fixed; it was dangerous; that he asked him (i. e., Willie) when he was going to fix it (the rail), and he said he would tell his father about it and would fix it, and that he did not say anything else at that time about the railing being dangerous; that he showed him it was dangerous and that was all, and that he told him, if he did not fix the piazza, ‘we would move out,’ and that he (Willie) did not say anything; that ‘some time after he told my wife it was all fixed up and it was all safe,’ this piazza rail next to the post; that his wife told him in the presence of his daughter and son that Willie Forest had fixed the piazza and told her it was all safe; that at the time he had his conversation with Willie and told him that it (the railing) was dangerous, and that he would move out if it was not fixed, Willie said that he ‘was going to fix it in good shape and for us to stay where we were.’

On recross-examination he testified that the railing had not been fixed when his wife fell; that Willie Forest told his wife that the piazza was safe; that the piazza was never fixed that he remembered; that he asked him several times to fix it, and it was not fixed; that if it hadn't been fixed-well she would not have-that the rail was never fixed before his wife fell so far as he knew; that, if it had been fixed, she would not have fallen out of it; that he never saw Willie on the piazza fixing it; that the rail had not been fixed; that he complained several times to Willie that the piazza had not been fixed; and that he looked at the piazza probably a week before his wife fell, and that the railing had not been fixed then.

On redirect examination he testified that he did not know whether Willie Forest made repairs there or not; that all he knew about the repairs was what his wife told him.

Amelia Richards, daughter of Eli Bergeron, testified that Eli's family consisted of her mother, plaintiff's intestate, Frank Bergeron, his son, her two nephews and her two children; that she was at home when her mother fell; that her mother went out on the piazza, then she heard a noise that seemed as though cans and things were tumbling down; that she walked onto the piazza and saw her lying on the ground; that she noticed that the piazza railing was gone at the south end and that the lower part was left, but all the baluster and railing was gone; that she knew Willie Forest, defendant's son; that sometimes her mother, plaintiff's intestate, and sometimes she (the witness) used to pay the rent; that she paid it sometimes to Willie, sometimes to Cleophas, and sometimes to Joe Forest; that Joe came after her mother was killed, and Willie and Cleophas came before; that repairs were made upon the piazza while they lived in the house; that these repairs were made by Willie Forest; that she saw Arthur Forest (the defendant) only come to the house once; that they saw Willie Forest very often, and that sometimes he would come and collect the rent; that he fixed the railing on the piazza on the south end and put in some nails (indicating on Exhibit 3 and Exhibit 1); that repairs were made upon the corner post (indicating) and that one slat was put in, an old one, which fell out; that he put the slat in in the middle of the summer before her mother was killed; that the repairs that he made at that end of the piazza were made at the same time; that she saw him making those repairs; that on the front of the piazza he put in some new slats and some old ones that were out, a new one on the north side and some old ones on the front; that he put in one or two slats on the north side; that two or three slats were put in the front; that she saw the slats put in by Willie Forest; that she was there and her mother and her daughter when they were put in, and that they were put in in September or August, 1915; that she had seen Willie Forest do some work on the piazza two or three times before her mother was killed; that she was present when her mother and father had a conversation with Willie Forest; that her father told him that the piazza and railing needed to be repaired; that her father stood up and pointed to the south end of the railing where her mother fell; that it was in bad condition; that her brother Frank and her mother, her daughter and herself were present; that Willie Forest said he had to report it to his father ;that he was going to tell his father and they would come and fix it; that her father told Willie that the balusters and railing would have to be repaired or they would move out; that Willie said he would tell his father and they would come and repair it, and he said to my father, ‘You stay just where you are; we will repair it,’ and that after this she saw Willie Forest making repairs; that Willie Forest said to stay just where they were and he would repair (the rail) it and repair the balusters that were out; that this was on a Saturday; that on the Saturday after this conversation he made the repairs; Willie Forest asked for a hammer and her mother handed it to him; that she went out on the piazza while he was driving nails in the railing at the south end at the place where her mother fell (pointing on plan); that he drove all nails beside of the upright post at the corner; that her mother was present when her father had...