Fernandes v. Medeiros

• Decision Date: 07 February 1950
• Citation: 325 Mass. 293,90 N.E.2d 9
• Parties: FERNANDES v. MEDEIROS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

325 Mass. 293

90 N.E.2d 9

FERNANDES v. MEDEIROS.

Supreme Judicial Court of Massachusetts, Bristol.

February 7, 1950

Argued Oct. 24 1949.

J. T. Farrell Fall River, for plaintiff.

G. Walsh, New Bedford, S. E. Bentley, New Bedford, for defendant.

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

COUNIHAN, Justice.

This is an action of tort by an invitee of a tenant against a landlord for negligence. The jury found for the plaintiff, and the action is here on the defendant's exception to the denial of a motion for a directed verdict.

The evidence most favorable to the plaintiff may be summarized as follows: The defendant on December 14, 1943, purchased a three family house in Fall River, the third floor of which was occupied by one Aguiar as a tenant at will, and the tenancy of Aguiar under the defendant then commenced. The accident happened on January 29, 1944, when the plaintiff was delivering fuel oil to Aguiar, in the cellar of this house. There were stone stairs with a wooden step or threshold at the top, leading to the cellar. These stairs were in control of the defendant and used in common by all the tenants. The entrance to the step at the top of the stairs was from a door on the outside of the house. The plaintiff testified that he started to go to the cellar and stepped on a piece of wood like a step on the inside and fell down the stairs; that as he stepped on the wooden step that was near the door 'it went down, it sunk on me * * * it opened like and it sunk down like' and that is when he fell down the stairs; that he thought the piece of wood sank two or three inches as he stepped on it that he had never been on these premises before; and that he did not look at the step before he started down nor did he look at it afterwards. Evidence as to the condition of the step came from one Silva, whom the plaintiff was assisting in the delivery of the oil. He testified that between December 14, 1943, and the time of the accident he had been in and out of the cellar and over the step and stairway at least twelve times; that the step on which the plaintiff fell, as well as the others, 'looked all right' on December 14, 1943, and looked all right on every occasion thereafter when he had used the step, up to the day of the accident; that immediately after the accident, he looked at the stairs and observed that the top step was broken in the center and that the broken piece was pushed in about four inches. A witness who saw the step for the first time within an hour after the accident testified, 'The top step was a wooden step to me. It seemed to be a wooden step. It was a wooden step. About the center of that step was broken and it seemed to be rotted.' Another who saw the step for the first time shortly after the accident testified, 'I saw the wooden step broke.' This witness also testified, 'when I looked at it [after the accident], I could see that cross piece was broken. * * * It was just braced by a few bricks and a little dirt underneath.'

The duty of a landlord to a tenant in respect to a common stairway is that of due care to keep it in such condition as it was in, or purported to be in, at the time of the letting. Andrews v. Williamson, 193 Mass. 92, 94, 78 N.E. 737, 118 Am.St.Rep. 452. It has also been said, 'The landlord owes a duty, not to keep the common passageway in as good a condition as that in which it was or appeared to be at the time of the letting, but rather to use reasonable care to do so.' Snecker v. Feingold, 314 Mass. 613, 614, 51 N.E.2d 118. The same duty exists toward an invitee of the tenant. McCarthy v. Isenberg Bros., Inc., 321 Mass. 170, 172, 72 N.E.2d 422.

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