Braimaster v. Wolf

• Court: Supreme Judicial Court of Massachusetts
• Writing for the Court: RONAN
• Citation: Braimaster v. Wolf, 320 Mass. 620, 70 N.E.2d 697 (Mass. 1947)
• Decision Date: 08 January 1947
• Parties: BRAIMASTER v. WOLF et al.

320 Mass. 620

70 N.E.2d 697

BRAIMASTER

v.WOLF et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Jan. 8, 1947.

Action of tort by Jacob Braimaster against Jacob Wolf and others for personal injuries sustained in a fall down a common stairway in defendants' building. Judgment for plaintiff, and defendants bring exceptions.

Exceptions overruled.Appeal from Superior Court, Suffolk County, Swift, Judge.

Before FIELD, C. J., and LUMMUS, QUA, DOLAN, and RONAN, JJ.

A. Hurwitz, of Boston, for plaintiff.

Simon B. Stein, of Boston, for defendants.

RONAN, Justice.

In this action of tort, brought by the plaintiff against his landlord to recover for personal injuries, there was evidence that while the plaintiff was descending a common stairway on a very cold morning in December, 1942, for the purpose of attending to the boiler which apparently heated his apartment and in order to secure a supply of fuel oil for his kitchen range, ‘something caught his foot’; that a broken step upon which he stepped caused him to fall; and that this stairway was in good condition when he first became a tenant in 1937, but six or seven months before the accident the plaintiff and his wife noticed that the step had become defective and, although the condition of the step was brought to the attention of the defendant, he refused to repair it. Photographs which were introduced in evidence showed that the stairway curved about ninety degrees to the left as one descended to the cellar, and that the riser had pulled away from beneath this step at its right-hand edge. The jury could find upon this evidence that the defendant had negligently failed to exercise reasonable care to keep the stairway in as good a condition as that in which it was or appeared to be when the plaintiff's tenancy began, Sneckner v. Feingold, 314 Mass. 613, 51 N.E.2d 118;Smith v. Morse, 315 Mass. 305, 52 N.E.2d 416, and that a causal connection between the defendant's negligence and the plaintiff's injury had been established. Marquis v. John Nesmith Real Estate Co., 300 Mass. 203, 14 N.E.2d 395;Russo v. Rizzo, 302 Mass. 177, 19 N.E.2d 45.

There was no error in the refusal of the judge to direct a verdict for the defendant upon the ground either that the plaintiff had voluntarily assumed the risk or that he was contributorily negligent. The jury could find that on account of the severity of the weather it was necessary for the plaintiff to go to the cellar in order to secure more heat for his apartment, and that so far as appears there was no way, other than the stairway, to reach the cellar. Furthermore, the location of the loose edge of the riser might have been found to be such that one would not have reasonably anticipated that it might catch his foot and cause him to fall. In any event, it could not be ruled that the defendant had sustained the burden of proving that the plaintiff had voluntarily assumed the risk of injury. Powers v. City of Boston, 154 Mass. 60, 27 N.E. 995;Pomeroy v. Inhabitants of Westfield, 154 Mass. 462, 28 N.E. 899;Fitzgerald v. Connecticut River Paper Co., 155 Mass. 155, 29 N.E. 464,31 Am.St.Rep. 537;Dunning v. New York Central Railroad, 255 Mass. 211, 150 N.E. 853;Lucas v. Byrne, 258 Mass. 365, 154 N.E. 920;Silver v. Cushner, 300 Mass. 583, 16 N.E.2d 27;Chapman v. Standen, 302 Mass. 4, 18 N.E.2d 356. Contributory negligence of the plaintiff...