Donnelly v. Larkin

• Decision Date: 05 April 1951
• Citation: 98 N.E.2d 280,327 Mass. 287
• Parties: , 25 A.L.R.2d 487 DONNELLY v. LARKIN et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 280

98 N.E.2d 280

327 Mass. 287, 25 A.L.R.2d 487

DONNELLY v. LARKIN et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Dec. 4, 1950.

Decided April 5, 1951.

W. F. Henneberry, Newton Center, for defendant.

F. I. Rose, Boston, for plaintiff.

Before QUA, C. J., and RONAN, WILKINS, WILLIAMS and COUNIHAN, JJ.

COUNIHAN, Justice.

This is an action of tort for personal injuries sustained on November 24, 1942, because of alleged negligence of the defendants in failing to provide suitable lighting on the outside stairway of premises at 1972 Dorchester Avenue, Dorchester. The action was originally brought against Henry S. Clark and Hedley C. Nickerson, owners as tenants in common of said premises. Counsel for an insurance company which had issued a policy covering said premises appeared for the defendants and in their behalf filed an answer setting up a general denial and also contributory negligence. The action was tried to a jury who on May 9, 1946, returned a verdict for the plaintiff. The action comes here upon exceptions of the defendants. ¹

These exceptions fall into two classes: (1) those relating to proceedings at the trial, and (2) those relating to proceedings after the trial.

We first consider the exceptions to the refusal of the judge to charge the jury as requested by the defendants, and to the denial by the judge of the defendants' motion for a directed verdict.

Following the charge, the defendants, who filed no written request for instructions before closing arguments, orally asked the judge to instruct the jury on the effect of G.L. (Ter.Ed.) c. 278, § 10. ²

Rule 71 of the Superior Court (1932) requires that 'Requests for instructions * * * shall be made in writing before the closing arguments unless special leave is given to present requests later.' As no special leave appears to have been given, the request had no standing. It is true that in certain circumstances where there has been an omission to charge adequately, even in the absence of specific requests by counsel, and where attention is properly directed to the omission and it is not remedied, an exception may be sustained if necessary to render substantial justice. Mahoney v. Gooch, 246 Mass. 567, 571, 141 N.E. 605. But such is not the situation here. 'The charge is not reported, and it must be assumed that full and accurate instructions on all issues were given.' Maidman v. Rose, 253 Mass. 594, 596, 149 N.E. 630, 632.

In considering the denial of the motion of the defendants for a directed verdict the familiar rule applies that 'we need consider only evidence favorable to the plaintiff from whatever witnesses it came, even if it was more favorable to the plaintiff than his own testimony; and there is no error in such a ruling if there can be found anywhere in the entire evidence any set of circumstances that will support a reasonable inference in favor of the plaintiff.' Mazzaferro v. Dupuis, 321 Mass. 718, 719, 75 N.E.2d 503, 504; Phillips v. Larson, 323 Mass. 87, 80 N.E.2d 7.

The defendants contend that the evidence does not warrant a finding that there was any obligation on their part to furnish lights, and further that the defendants' negligence, if any, was not the cause of the plaintiff's injury. They also insist that the plaintiff was guilty of contributory negligence. We have said, however, 'The plaintiff must recover, if at all, on the familiar principle that, in the absence, as here, of express agreement, a landlord owes a duty--breach of which would constitute negligence--to a tenant, and to persons using the premises in his right, to exercise reasonable care to keep the part of the premises remaining in the control of the landlord in the condition with respect to safety in which they were, or to a person of ordinary observation would appear to be, at the time of the letting.' Silver v. Cushner, 300 Mass. 583, 584-585, 16 N.E.2d 27, 28; Marquis v. John Nesmith Real Estate Co., 300 Mass. 203, 205, 14 N.E.2d 395; Gill v. Jakstas, 325 Mass. 309, 312, 90 N.E.2d 527; Brown v. A. W. Perry Co., 325 Mass. 479, 480-481, 91 N.E.2d 229. This rule is applicable to lighting. Gallagher v. Murphy, 221 Mass. 363, 365, 108 N.E. 1081. The landlord owes the same duty to a person on the premises to do business with a tenant as to the tenant. Marquis v. John Nesmith Real Estate Co., 300 Mass. 203, 205, 14 N.E.2d 395; Brown v. A. W. Perry Co. 325 Mass. 479, 480-481, 91 N.E.2d 229.

We must therefore first determine whether or not there is any evidence from which a jury could reasonably find that the letting agreement here impliedly contained any obligation on the part of the landlords to maintain lights on the outside stairway where the plaintiff was injuried. In Gallagher v. Murphy, 221 Mass. at page 365, 108 N.E. at page 1082, it was said, 'The contract of letting does not appear to have been in writing. There was no direct and positive evidence as to its terms. Therefore the conduct of the landlord and of the tenant, to the extent that it was so open and notorious as to speak the understanding of the parties and as to be likely to have come to the attention of the other and to be of such character as to call for some action on his part if he did not assent to the implications fairly arising from it, may be resorted to for the purpose of determining what were the terms of the tenancy according to the intentions and contemplation of the parties.' See Fitzsimmons v. Hale, 220 Mass. 461, 107 N.E. 929.

From the evidence the jury could reasonably find that the plaintiff was on her way to visit Mrs. Graham, a dressmaker and a tenant on the third floor of these premises, to get a dress which Mrs. Graham had altered for her for a price. Mrs. Graham became a tenant in 1934. She had moved to California after the accident and there was no testimony from her at the trial. This building was a six family dwelling with two similar entrances, one for No. 1972 and one for No. 1974 Dorchester Avenue. Facing the building, No. 1972 was on the left and No. 1974 was on the right. There were five brick steps leading to the entrances. There was evidence that in the winter of 1931 there was a light at each entrance which was turned on 'at nightfall, or near nightfall, going into dusk.' There was further evidence that for a period of about four years prior to the accident these lights were maintained by the defendants and up to October, 1942, were turned on every evening by the caretaker by hand. Sometime in October, 1942, an automatic device was installed to operate the lights. This was located in the basement of the building and the adjustment of it was left to the manager of the building. At the time of the accident there was a dimmer on these lights because of war time restrictions, but if the lights were on the outline of the steps and the platform leading to No. 1972 could be seen. The lights outside and the light in the hall of No. 1972 were all on the meter of the landlords. The outside lights were supposed to be regulated to turn on at 5:30 P.M. or sundown on the day of the accident. If the manufacturer's regulations as to the operation of this device were not followed, the automatic device would not work properly. The nearest street lights were two hundred to three hundred feet away from the entrances. The building was set back from the street line about ten to fifteen feet, and there were obstructions in the form of trees between the building and the sidewalk, causing the area immediately about the building to be darker than the street.

In these circumstances the jury could find that the plaintiff arrived on these premises sometime after 6 P.M. to visit Mrs. Graham to get her dress. It was raining and very dark. She walked up the stairs and rang the bell of Mrs. Graham's apartment. Upon receiving no answer after waiting an appreciable period, she started to go back down the stairway. No lights were on at the entrances to the building and the hall light of No. 1972 was not on. As she put her foot out to step from the top step to the next one below, she missed the step and the heel of her shoe caught on the edge of the top step and she fell. It was so dark that she could not see where her foot was going. After lying on the ground some time she arose and walked up the stairs again and was admitted by a Mrs. Munroe, a daughter of the manager of the building, whom she told of her fall.

Having in mind the language in Gallagher v. Murphy, 221 Mass. 363, at page 365, 108 N.E. 1081, which we have quoted above, we are of opinion that the jury could infer from all the evidence that one of the implied terms of the tenancy of Mrs. Graham was that the outside lights be turned on at dark. The building was so situated that an outside light was necessary, and it apparently had been provided from 1931 to the time of the accident. As we have said already, the duty of the defendants was not absolute but one of due care. We are of opinion that there was evidence from which the jury could warrantably find that the failure of the defendants to maintain the outside lights at the time of the accident was want of due care and amounted to negligence which contributed to the plaintiff's injuries.

The other contention of the defendants, that the plaintiff was guilty of contributory negligence, is without merit. They rely upon the rule, frequently stated, 'that one who has incurred an injury while groping his way in a dark place with which he is unfamiliar is not in the exercise of due care.' Story v. Lyon Realty Corp., 308 Mass. 66, 71, 30 N.E.2d 845, 848. But such is not the rule in all circumstances. Humphreys v. Portsmouth Trust & Guarantee Co., 184 Mass. 422, 424 68 N.E. 836; McLeod v. Rawson, 215 Mass. 257, 260, 102 N.E. 429, 46 L.R.A.,N.S., 547; Smith v. New England Cotton Yarn Co., 225 Mass. 287, 292, 114 N.E. 353; Sodekson v. Lynch, 314 Mass. 161, 166, 49 N.E.2d 901....