Gallagher v. Murphy
| Decision Date | 24 May 1915 |
| Citation | 221 Mass. 363,108 N.E. 1081 |
| Parties | GALLAGHER v. MURPHY. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
B. A. Brickley and McLellan, Carney & Brickley all of Boston, and John E. Swift, of Milford, for plaintiff.
Dickson & Knowles, of Boston, for defendant.
The plaintiff according to her own testimony received in a tenement house owned by the defendant, personal injuries under these circumstances: As she left the apartment of her son at about half past 5 o'clock on a January afternoon the door opening into the common hallway closed behind her and thereupon she found herself in darkness while on the point of stepping in the usual way, as she supposed, upon a landing, but in fact at a stair, and she fell. She was familiar with the place. There was evidence that whenever she had left her son's apartment after dark on previous occasions, a gas jet was lighted in the hall. In this instance, the light shone from the private hallway of the apartment out into the common hall and she did not notice that it was otherwise unlighted until the door of the apartment closed behind her. While this testimony was somewhat shaken on cross-examination, its substantial accuracy was for the jury. It was sufficient to support a finding that the plaintiff was in the exercise of due care. There are some differences between the facts here disclosed and those of Faxon v. Butler, 206 Mass. 500, 92 N.E 707, 138 Am. St. Rep. 405, 19 Ann. Cas. 666, but they are of unimportant details and not of essential factors. This case is governed by that case on this point. See also McLeod v. Rawson, 215 Mass. 257, 102 N.E. 429, 46 L. R. A. (N. S.) 547.
The plaintiff as the guest of her son, the tenant of the defendant, is entitled to recover if she can show that she was injured by negligence of his landlord. Domenicis v. Fleisher, 195 Mass. 283, 81 N.E. 191.
It is familiar law that a tenant commonly takes premises as he finds them, with no duty on the part of the landlord to look after their safety. But where the landlord retains in his possession and control the common halls and passageways, the law imposes a duty, which may rest wholly upon implication or may be defined and specified by the terms of the contract of letting, to keep them in the same condition as to safety in which they are or appear to be at the commencement of the tenancy. Miles v. Janvrin, 196 Mass. 431, 82 N.E. 708, 13 L. R. A. (N. S.) 378, 124 Am. St. Rep. 575; Id., 200 Mass. 514, 86 N.E. 785.
There is no obligation under ordinary circumstances, in the absence of express or implied agreement or statutory obligation, on a landlord to light common passageways. Stone v. Lewis, 215 Mass. 594, 104 N.E. 284, 50 L. R. A. (N. S.) 471, Ann. Cas. 1914D, 591. See Ann. Cas. 1914D, 592, note for further cases. Any duty in this respect in the case at bar must rest on contract. Flanagan v. Welch, 220 Mass. 186, 107 N.E. 979.
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...
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