Conroy v. Maxwell

• Decision Date: 01 March 1924
• Citation: 248 Mass. 92,142 N.E. 809
• Parties: CONROY v. MAXWELL.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

248 Mass. 92

142 N.E. 809

CONROY

v.MAXWELL.

Supreme Judicial Court of Massachusetts, Middlesex.

March 1, 1924.

Report from Superior Court, Middlesex County; James H. Sisk, Judge.

Action of tort by William F. Conroy, administrator of the estate of Mary Conroy, deceased, against Beatrice J. Maxwell, for personal injuries sustained, which resulted in her death without conscious suffering. On report after a verdict for plaintiff. Judgment for plaintiff.Kerwin & Reilly, of Lowell, for plaintiff.

D. J. Donahue and J. P. Donahue, both of Lowell, for defendant.

CROSBY, J.

This is an action of tort brought to recover for the death of the plaintiff's intestate. The case is before us on a report of the trial judge after a verdict for the plaintiff.

On September 12, 1921, the date of the accident, which resulted in the death of the intestate, the defendant was, and for at least eighteen years before that time had been, the owner of a building situated on the northerly side of Bartlett street in Lowell. The building had two tenements; the upstairs one being occupied by the plaintiff's intestate for the seventeen years before her death, and that downstairs by one Fee, both as tenants at will. Each tenement had a separate front entrance; and there were separate rear entrances which were reached by entering the yard on the easterly side of the building, which yard sloped gradually downward from the level of the street. An uncovered piazza, ten feet long and three feet wide, extended from the northeast corner of the house along a portion of the easterly end and was reached from the yard by four or five steps at its south end which was about five feet above the ground; and the northerly end about seven feet above the ground. Along the northland east sides of the piazza and about three feet above the floor was a railing supported by three posts. Two doors led from the westerly side of the piazza to the tenements, the southerly door to the one downstairs and the northerly door to that occupied by the deceased. The southerly door was just north of the southerly end of the piazza, and the northerly door was just south of its northerly end. The piazza was used for no purpose except as a means of entrance and exit. A piazza was built into the second story as part of the upstairs tenement, the easterly line of which was parallel with and directly above the westerly line of the piazza downstairs. A gutter about ten feet long was attached to the eaves at the easterly edge of the roof just above the upper piazza and ran parallel with it to its northerly end.

When the tenancy of the deceased began the downstairs piazza and the gutter were in good condition; later the piazza showed signs of deterioration; in 1917 it was noticeably dilapitated, and thereafter its condition became worse. There was evidence that within a year before the accident the deceased on several occasions had called the defendant's attention to the condition of the piazza and asked her to repair it, and that the defendant replied that she could not do so ‘until labor came down’; that on August 15, 1921, the occupant of the lower tenement called the defendant's attention to the poor condition of the piazza; that from some time in the year 1917 until the day of the accident the gutter was loose and hung below its proper position from six to eight inches, leaving an open space between it and the edge of the roof; that about three o'clock in the morning Fee was awakened by a loud crash, and went out to the piazza with a search light and observed that the railing on the north side of the piazza was gone, but that the one on the east side was standing; that he saw a portion of the gutter lying on the ground north of the piazza. He further testified that the night before, the north railing was in place. The ‘loud crash’ referred to by Fee was also heard by one Haggerty who lived in an adjoining house.

Margaret Conroy, a daughter of the deceased who lived with her mother, testified that in the morning of the day of the accident she was awakened by her mother about 5:50 o'clock and that shortly afterwards she heard her mother going down the back stairs which led to the lower piazza; that it was her mother's practice to go down at this time every morning ‘to get the milk’; that she heard her mother open the northerly door leading on to the piazza, and after a space of about four or five seconds she heard ‘a crash as of splintering wood’; that she arose from her bed and looking down saw her mother lying face down on the ground to the east of the piazza; that she hurried down the back stairs and then noticed that there were no rails or posts standing on the piazza; that she went down the steps to her mother and found her lying with the easterly rail of the piazza beneath her body; that she was lying directly opposite the northerly door leading from the piazza. A certified copy of the death certificate was admitted in evidence in which it was stated that the deceased died ‘as a result of a fracture at the base of her skull caused by a fall from a piazza.’ There was evidence that a few hours after the accident the wood at the base of the posts of the piazza was found to be in a decayed condition and that the removal of the northerly rail would greatly weaken the easterly rail.

The conduct of the deceased is not fully disclosed by the evidence. She is presumed to have been in the exercise of due care. St. 1914, c. 553, now G. L. c. 231, § 85. That question, therefore, was for...