Dreher v. Bedford Realty, Inc.

• Decision Date: 01 February 1957
• Citation: 335 Mass. 385,140 N.E.2d 180
• Parties: Dorothy L. DREHER v. BEDFORD REALTY, Inc.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 180

140 N.E.2d 180

335 Mass. 385

Dorothy L. DREHER v. BEDFORD REALTY, Inc.

Supreme Judicial Court of Massachusetts, Bristol.

Argued Oct. 29, 1956.

Decided Feb. 1, 1957.

Leonard E. Perry, New Bedford (William B. Perry, Jr., New Bedford, with him), for plaintiff.

William J. Fenton, Taunton, for defendant.

Before WILKINS, C. J., and RONAN, SPALDING, WILLIAMS, and WHITTEMORE, JJ.

SPALDING, Justice.

In this action of tort the plaintiff seeks to recover damages for personal injuries sustained when she slipped and fell while descending a stairway allegedly under the control of the defendant. The jury returned a verdict for the plaintiff. The defendant excepted to the denial of its motion for a directed verdict and to certain portions of the judge's charge. The plaintiff, who also comes here on exceptions, waives them in the event the defendant's exceptions are overruled.

1. We are of opinion that the trial judge correctly denied the defendant's motion for a directed verdict. The pertinent evidence may be summarized as follows: At all times here material the defendant was the owner of the Page Mill, a three story factory building in New Bedford. On September 19, 1945, the defendant leased the southerly portion of the third floor of this building to the Cove Dress Corporation for a period of three years from September 1, 1945. This lease, on December 24, 1947, was renewed as of September 1, 1948, for a further period of two years. At some time prior to the accident the name of the Cove Dress Corporation was changed to the Abetta Sportswear Corporation and it will hereinafter be called Abetta.

At the time of the accident there were about one hundred sixty employees of Abetta who had 'access to and from' these premises only by means of a stairway located on the southeasterly side of the building, and this number, with minor fluctuations, had used this stairway throughout the period that Abetta had occupied the premises. The stairway from the second to the third floor consisted of one section leading westerly from the landing on the second floor to a platform, and a second section leading easterly from the platform to a landing at the top which led to the premises on the third floor occupied by Abetta. The upper end of the stairway between the second and third floor had a handrail on the left side as one descends the stairway, while on the right side there was no handrail. The stairs were of wood and were about seven or eight feet in width.

About 4:30 P.M. on November 3, 1949, the plaintiff, an employee of Abetta, left the third floor premises by means of the above described stairway and started to descend on the right side where there was no handrail. Five or six other employees were descending with her. The only light on the stairway at this time was obtained through a large window at the top of the stairs. The day was dark and rainy. At about the second stair from the top of the third floor landing she slipped off the stair and fell on her back on the eighth step from the top.

A week before her fall, the plaintiff observed that the second and third steps of the top section of the stairway were worn. Photographs of the stairway, which are before us, also showed that these steps were worn considerably in several places, and that the worn spots were concave in the places which apparently were used the the most by persons going up and down the stairs. The defendant's president, Cohen, testified that the stairway was 'in good condition' at the time he signed the lease with Abetta. He was familiar with its general condition at all times relevant to this controversy for his duties required him to use the stairway on various occasions.

These facts are sufficient to support a verdict for the plaintiff. The defendant owed to the plaintiff only such duty with respect to the portions of the Page Mill retained under its control as it owed to Abetta, the plaintiff's employer. Leslie v. Glaser, 273 Mass. 221, 223, 173 N.E. 413; McCarthy v. Isenberg Bros., Inc., 321 Mass. 170, 72 N.E.2d 422. This duty was to use reasonable care to maintain such portions in as good condition as that in which they were or appeared to be at the time of the letting to Abetta. Bacon v. Jaques, 312 Mass. 371, 373, 44 N.E.2d 648, and cases cited. Stedfast v. Rebon Realty Co., Inc., 333 Mass. 348, 350, 130 N.E.2d 595. According to Cohen the stairway was 'in good condition' at the time the premises were leased to Abetta. It is not clear whether Cohen, when he gave this testimony, had reference to the condition of the stairway at the time of the original letting on September 1, 1945, or to its condition on September 1, 1948. The defendant did not choose to limit or clarify this testimony by cross-examination as it had opportunity to do, and the jury might reasonably have inferred that Cohen had reference to the time of renewal. ¹ In addition, there was evidence that the condition of the stairway was affected by the daily use by about one hundred sixty employees of Abetta. This evidence together with the testimony of the plaintiff and the photographs showing the worn condition of the stairway at or about the time of the accident might well warrant a finding that the condition of the stairway had deteriorated substantially since September 1, 1948. See Braimaster v. Wolf, 320 Mass. 620, 621, 70 N.E.2d 697. There was other evidence from which the jury could reasonably have found that Cohen had reason to know of this deterioration, and that the defendant was at fault in failing to remedy it. Bennett v. Jordan Marsh Co., 216 Mass. 550, 552, 104 N.E. 479; Loudon v. Beaulieu, 277 Mass. 33, 35, 177 N.E. 806; Shrigley v. Boston Symphony Orchestra, Inc., 287 Mass. 300, 304, 191 N.E. 420; Mulloy v. Kay Jewelry Co. of Quincy, 289 Mass. 264, 266, 194 N.E. 116; Corcoran v. United Markets, Inc., 314 Mass. 26, 27, 49 N.E.2d 250; McCollum v. United Markets, Inc., 323 Mass. 32, 34, 80 N.E.2d 29.

A more difficult question is whether the jury could reasonably have found that there was a causal connection between the defective condition of the stairs and the plaintiff's injury. We are of opinion that such a finding was warranted. Marquis v. John Nesmith Real Estate Co., 300 Mass. 203, 14 N.E.2d 395, 396, is directly in point on this question. In that case the steps on which the plaintiff fell were worn 'where the people go down.' So too in the case at bar, the steps on which the plaintiff slipped were worn in several places, including places on the side of the stairway where the plaintiff descended. These worn places were obviously the places bearing the greatest proportion of the traffic on the stairway. As was said in the Marquis case, 300 Mass. at page 206, 14 N.E.2d at page 396, 'There is nothing to indicate that the plaintiff was not leaving * * * in the usual way and at the customary place.' The jury thus could have found that the plaintiff was descending the steps at a point where they were excessively worn and that her fall was due to a defect for which the defendant was responsible.

2. The defendant took exception to the trial judge's charge that, as matter of law, control of the stairway on which the injury occurred remained with the defendant. Of course if the defendant was not in control of the stairway, it would not be liable. Minkkinen v. Nyman, 325 Mass. 92, 94, 89 N.E.2d 209. The question of control depends upon the agreement of the parties to the letting. Where the agreement is ambiguous or uncertain on the matter of control the question is one of fact and the construction adopted and acted upon by the parties is entitled to great weight. Nash v. Webber, 204 Mass. 419, 424, 90 N.E. 872; Conroy v. Maxwell, 248 Mass. 92, 97, 142 N.E. 809; Cuscuna v. Rood, 289 Mass. 213, 216, 193 N.E. 795; Ruane v. Doyle, 308 Mass. 418, 420, 32 N.E.2d 244. But where the agreement, particularly in the case of a written lease, is clear and unambiguous the question is one of law for the court. See Shipley v. Fifty Associates, 101 Mass. 251, 254; Nunan v. Dudley Properties, Inc.,...