Goodman v. Smith
| Decision Date | 04 February 1960 |
| Citation | 340 Mass. 336,164 N.E.2d 130 |
| Parties | Lillian GOODMAN et al. v. Frederick SMITH. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Charles O. Monahan, Boston (Louis Goldblatt, Boston, with him), for defendant.
Morris Michelson, Boston, for plaintiffs.
Before WILKINS, C. J., and SPALDING, WILLIAMS, COUNIHAN and CUTTER, JJ.
In this action of tort Lillian Goodman, hereinafter called the plaintiff, who with her husband, Lester H. Goodman, was a tenant of the defendant, seeks to recover damages for personal injuries sustained by her on or about June 15, 1954, by reason of the negligent maintenance by the defendant of the floor of the attic of a three family dwelling house numbered 12 Spencer Street, Dorchester. Her husband also seeks consequential damages.
At the close of the evidence the defendant filed a motion for directed verdicts which was denied subject to an exception of the defendant. The jury under leave reserved returned verdicts for both plaintiffs and the defendant filed a motion for the entry of verdicts for him which was also denied subject to an exception of the defendant. The judge reported the action to this court to determine, we assume, the correctness of his action in denying these motions. G.L. c. 231, § 111.
In the meantime the defendant filed a motion for a new trial upon which the judge reserved action until this court acted upon the report. We think that the judge was right in denying the defendant's motions.
On evidence most favorable to the plaintiff it appears that Mr. and Mrs. Goodman became tenants on the first floor of this dwelling house on February 1, 1953. They were then given permission by the defendant to use the attic and the cellar for storage in common with the defendant who occupied the second floor and another tenant who occupied the third floor.
The defendant called as a witness by the plaintiff testified that at the time the Goodmans moved in the was familiar with the condition of the floor of the attic and that it was in good condition. That part of the attic floor leading from the entrance to a chimney in the middle of the attic was covered with boards of various lengths which apparently were nailed to the stringers of the attic floor. No flooring covered the stringers on the rest of the attic. When the plaintiff first observed the attic floor where board covered the stringers that part of the floor looked as normal as any other attic floor. About four or five weeks before the accident her husband stored a spring and a mattress in the attic and there were some loose floor boards there. Her husband reported that condition to the defendant who said he would take care of it.
On the day of the accident the plaintiff went to the attic to store some dishes, assuming that the defendant had taken care of the floor. She placed them on the floor near the chimney and as she turned around to walk to the door of the attic a piece of board which was part of the floor slipped and her leg went through the floor and the ceiling of the third floor apartment. She sustained injury.
The defendant testified that he went to the attic frequently, that he...
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