Brodsky v. Fine

• Decision Date: 06 March 1928
• Citation: 263 Mass. 51,160 N.E. 335
• Parties: BRODSKY v. FINE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

263 Mass. 51

160 N.E. 335

BRODSKY

v.FINE.

Supreme Judicial Court of Massachusetts, Suffolk.

March 6, 1928.

Exceptions from Superior Court, Suffolk County; James H. Sisk, Judge.

Action by Bessie Brodsky against S. Fine, in which a judge of the Supreme Judicial Court sitting without a jury made findings of fact and rulings of law adverse to defendant. On defendant's substitute bill of exceptions. Exceptions sustained.George L. Rabinowitz, of Boston, for plaintiff.

Warner, Stackpole & Bradlee and W. B. Leach, Jr., all of Boston, for defendant.

PIERCE, J.

This is an action of tort in which the plaintiff seeks to recover damages for personal injuries sustained, on March 31, 1926, by reason of the ‘improper and insufficient lighting’ of a common stairway in a building on the defendant's premises, numbered 51 Allen street, Boston. The case was heard by a judge of the superior court sitting without a jury, and is before this court on the defendant's substitute bill of exceptions which contains ‘all the testimony material to the issues raised by this bill of exceptions.’

The building above referred to was of brick construction, five stories in height, laid out for ten tenements; five front tenements with a common stairway and five rear tenements with a common stairway. The defendant employed a janitor at the time of the accident whose duty it was to light the rear common stairway and the front hall on the first floor; he did nothing further with the other front tenements or front stairway. There were two tenements on each floor; the plaintiff occupied the front one on the fifth floor; the defendant lived on the first floor.

The defendant testified that at the time of the letting of the front tenements he entered into an agreement with each tenant that said tenant would light his own hallway, and that he made this arrangement with the plaintiff. He further testified that in case a tenant in the front of the building was going out for an evening, he gave permission to light his hallway to the defendant, and that there were electric and gas fixtures so arranged that they were connected with the tenants' meters, and the tenants paid the cost of this lighting.

The plaintiff testified that, so far as her light was concerned, she had paid the cost of this light and that she turned it off and on as she saw fit; that she was to furnish the light for the fifth floor front; that she asked the defendant about the lights and he said ‘the lights will be left there, there will be light.’ There was further testimony on behalf of the plaintiff, that the defendant distinctly said at the time of the hiring by the plaintiff that ‘it [the hallway] would be lighted, everything would be lighted, there was electricity all over the house and everything was fine,’ that the plaintiff was supposed to furnish the light on the top floor and that the other hallways were to be lighted.

There is no reported evidence ‘tending to show that the defendant or his agents ever lighted the lights in the so-called front hallway and stairways except on certain occasions when he was requested by a tenant who was absent to do so, or when an apartment was not occupied.’ The judge found:

(1) ‘There was no contract made by the defendant to light this stairway at the time of the letting of the premises.’ (2) ‘The defendant made no contract with the plaintiff regarding the lighting of the premises.’ (3) ‘On all the evidence there was no express contract * * * to light the building.’ (4) There was no defect in the ‘physical condition’ of the stairway. (5) ‘The plaintiff was in the exercise of due care.’

As found by the judge the facts which describe the injury to the plaintiff are as follows:

‘On March 31, 1926, about 8:30 to 9 o'clock in the evening, the plaintiff left her apartment on the fifth floor in company with Ruth Cohen. She turned on the light on her own floor and started down the stairs, Miss Cohen going first. There was no light on the fourth and third floors. The front tenement on the third floor was unoccupied at the time of the accident. When she arrived at the third floor she started to go down the stairs * * * to the second floor * * * [holding] the stair rail with her left hand, and when she reached a bend in the stairs she fell to the second floor and was injured. There was no light at the place where she fell.’

It is plain on the reported facts, and the finding of the judge, that the defendant was under no common-law obligation to the plaintiff to light the common front hallways. He had not assumed by conduct an obligation to light them and had made no contract with the plaintiff so to do. Moreover, there was no physical defect in the stairs or stairway at the time of the accident, and no evidence appears in the record that the shape, form or fashioning of the stairs or stairway was not in the same condition it was in or appeared to be in at the time of the letting. McGowan v. Monahan, 199 Mass. 296, 297, 85 N. E. 105,17 L. R. A. (N. S.) 928, 127 Am. St. Rep. 501;Stone v. Lewis, 215 Mass. 594, 104 N. E. 284,50 L. R. A. (N. S.) 471. See Ann. Cas. 1914D, 592, note for cases collected; Gallagher v. Murphy, 221 Mass. 363, 365, 108 N. E....