City of Boston v. Gray

• Decision Date: 25 February 1887
• Citation: 10 N.E. 509,144 Mass. 53
• Parties: CITY OF BOSTON v. GRAY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

144 Mass. 53

10 N.E. 509

CITY OF BOSTON v. GRAY.

Supreme Judicial Court of Massachusetts, Suffolk.

February 25, 1887

COUNSEL

R.W. Nason, for plaintiff.

The defendants, by digging a pit in the highway, and covering it with an iron frame roofing, so perishable as to become smooth and dangerous from public travel, created a public nuisance. Soltau v. De Held, 2 Sim. (N.S.) 133, 142; Dygert v. Schenck, 23 Wend. 447-450. And the defendants, whether the creators of it or the grantees maintaining it, are liable for the injury complained of. McDonough v. Gilman, 3 Allen, 264; Fisher v Cushing, 134 Mass. 374; Stetson v. Faxon, 19 Pick. 147; Smith v. Smith, 2 Pick. 621; Prentiss v. Wood, 132 Mass. 487. And they cannot rid themselves of this liability by leasing the nuisance, especially where they reserve the rent. McDonough v. Gilman, supra; Salem v. Eagle Mill Co., 138 Mass. 8; Jackman v. Arlington Mills, 137 Mass. 277, 283.

The defendants are not in a situation to avail themselves of the principle that the occupier, and not the landlord, is bound to keep the buildings and other structures abutting upon common highways in repair, for they had the general supervision of the whole. Shipley v. Fifty Associates, 101 Mass. 251, 254; Stockwell v Hunter, 11 Metc. 455; 1 Washb. Real Prop. (4th Ed.) p 545, § 10. The defendants are liable in the case at bar, because the tenant's occupation of the premises was not exclusive. Milford v. Holbrook, 9 Allen, 17; Stockwell v. Hunter, supra; Shipley v. Fifty Associates, supra; Pevey v. Skinner, 116 Mass. 129. The plaintiff was not a joint wrong-doer with the defendants. Lowell v. Boston & L.R. Co., 23 Pick. 24; Woburn v. Henshaw, 101 Mass. 193; Milford v. Holbrook, 9 Allen, 17, 23.

R.H. Gardiner, for defendants.

To reverse the judgment, the city must show (1) that the right of action, if it has any, is against the landlords; (2) that it has a right of action. The whole building was in the exclusive possession and control of two tenants, and the rule is well settled, as laid down in Lowell v. Spaulding, 4 Cush. 277, that the landlord is prima facie liable, and that it is only to prevent circuity of action that, if the landlord has bound himself to make repairs, an action is allowed in the first instance against him. Of course, repairing this defect was not within the prohibition, by the lease, of alterations or additions. Boston v. Worthington, 10 Gray, 497, 500. The New York decisions, relied on by plaintiff at the trial, are not in point, because plaintiff has failed to show that the accident was caused by an original fault of construction, or that we in any way upheld or continued the defect; and, besides, they are hardly consistent with the latest New York case, ( Wolf v. Kilpatrick, 101 N.Y. 146.) Moreover, the law of New York on this point is peculiar to that state. See Pretty v. Bickmore, L.R. 8 C.P. 401; Gwinnell v. Eamer, L.R. 10 C.P. 659; Fisher v. Thirkell, 21 Mich. 1; Bears v. Ambler, 9 Pa.St. 193; Gridley v. Bloomington, 68 Ill. 47.

OPINION

W. ALLEN, J.

The plaintiff relies upon two grounds to take this case out of the rule that the occupier of premises, and not the landlord is under obligation to keep in repair, so as to be safe for the public. Lowell v. Spaulding, 4 Cush. 277; Stewart v. Putnam, 127 Mass. 403. It is contended that the excavation under the sidewalk was the nuisance put there by the landlord, and let by him to the tenants, to be used by them. But the court finds that the excavation was properly there, and that its covering was properly made and placed, and of proper materials, and that the accident happened because it had worn smooth and slippery from long use. The nuisance, then, consisted in the condition of the surface of the covering which formed part of the sidewalk; and it is not claimed that it was in the same condition when the premises went from the occupation of the landlord into that of the tenants, if that would be material. In both of the cases cited above it was held that a landlord was not under obligation to see that excavations in sidewalks, made by him and covered when let, were kept covered. In Larue v. Farren Hotel Co., 116 Mass. 67, the opening in the sidewalk was made, and left uncovered, by the landlord, and he...