Condon v. Winn

• Court: Supreme Judicial Court of Massachusetts
• Writing for the Court: PIERCE
• Citation: Condon v. Winn, 252 Mass. 146, 147 N.E. 562 (Mass. 1925)
• Decision Date: 18 April 1925
• Parties: CONDON v. WINN.

252 Mass. 146

147 N.E. 562

CONDON

v.WINN.

Supreme Judicial Court of Massachusetts, Hampden.

April 18, 1925.

Exceptions from Superior Court, Hampden County; Nelson P. Brown, Judge.

Action by Mary Condon against Mary Winn. Verdict for plaintiff, and defendant excepts. Judgment entered for defendant.G. D. Cummings and G. F. Leary, both of Springfield, for petitioner.

R. A. Bidwell and W. G. Brownson, both of Springfield, for defendant.

PIERCE, J.

This is an action of tort to recover damages for personal injuries sustained by the plaintiff, from a fall occasioned by the giving away of a veranda railing on the second floor of the property occupied by her and her husband, he being the tenant of this property. The plaintiff and her husband had lived on the premises for about two years before the accident occurred on October 17, 1921. When hired by the husband the premises were owned by a Mrs. Cooper, and consisted of the second floor of a two-tenement family dwelling house, the veranda on the second floor, and an attic room on the third floor.

Three or four months after the tenancy began, the attic rooms were made into a tenement and a stairway was built thereto from the second floor hallway to the third floor, ‘slightly to one side of the door leading to the platform and about three feet back of it.’ The stairway was narrow and all tenants of the third floor used the platform to take ‘some furniture’ to that floor through the window. There was evidence that Mrs. Cooper furnished the third floor when it was converted into a tenement and it was rented as a furnished apartment; that Mrs. Cooper, when told by a tenant that the third floor tenement ‘was very hot,’ replied, ‘Well, you can use Mrs. Condon's piazza’; that Mrs. Cooper saw her using it; and that other tenants of the third floor were accstomed to sit with the plaintiff, and without her, on the veranda platform. There was no evidence, other than might be inferred from the fact of the use of the platform without objection by the husband of the plaintiff, to prove that the tenants of the third floor became tenants in common of the platform with the tenant of the second floor, and no evidence that Mrs. Cooper or the defendant ever changed or took away the use of the veranda platform in connection with the occupation of the leased premises.

[1][2][3] The defendant purchased the property from Mrs. Cooper on August 12, 1921, and the plaintiff's husband became her tenant by the payment of rent at some time, not shown by the record, between the day of the purchase and October 17, [252 Mass. 148]1921, the day of the accident. There was no evidence of the condition of the rail or of how it looked when the tenancy of the plaintiff's husband began, or at any time before the accident. Kirby v. Tirrell, 236 Mass. 170, 128 N. E. 28. The motion of the defendant for a directed verdict should have been granted. A tenant,...