Grady v. Gardiner

Decision Date11 September 1930
Citation172 N.E. 602,272 Mass. 491
PartiesGRADY v. GARDINER.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

OPINION TEXT STARTS HERE

Exceptions from Superior Court, Suffolk County; Joseph Walsh, Judge.

Action by Elizabeth J. Grady against Mary Gardiner. Verdict for defendant. On plaintiff's exceptions.

Exceptions overruled.

John A. Lyons, of Boston, for plaintiff.

T. H. Calhoun and Edward J. Sullivan, both of Boston, for defendant.

FIELD, J.

This is an action of tort to recover damages for personal injuries alleged to have been received by the plaintiff by reason of her falling over a sewer pipe in the basementof the defendant's premises. Upon motion of the defendant a verdict for her was directed and the plaintiff excepted.

The evidence tended to show the following facts: The plaintiff was employed as a nurse by the tenant of an apartment on the third floor of the defendant's premises. Under a lease the tenant was entitled to janitor service. The junitor's rooms were in the basement, but at the time of the accident the janitor lived in a nearby house also owned by the defendant. There was no means of communicating with him from the apartment in which the plaintiff lived. The ‘only way to get * * * [him] was to go down and look for him’ ‘or wait for him to come upstairs.’ On the day in question the plaintiff went to the janitor's apartment in the other house to get him to clean out a clogged toilet in the bath room in her employer's apartment, such work being a part of his duties, but did not find him. Continuing to look for him, she went into the basement of the building in which her employer's apartment was located, ‘proceeded to walk across said basement to where she thought the janitor was' and while doing so fell over a sewer pipe, which ran across the basement at approximately the height of her knees and was injured. The basement contained heaters and coal bins, and a storage closet for each apartment. The plaintiff's employer had the use of one of these closets. The accident occurred on a ‘dark, rainy day.’ At the time it happened some light came through windows into the basement, but the electric lights were not lighted and, according to the testimony of the plaintiff, the basement was ‘dark,’ though she testified also that ‘the light was fair,’ that ‘if she had been looking for the pipe she would have seen it’ and that ‘after she fell she saw the pipe all right.’

It could have been found that the basement was within the control of the defendant and in part was for the use in common of the tenants of the apartments in the building for the purpose of access to the storage closets and to the janitor, and that the plaintiff was using the basement for that purpose in the right of her employer, a tenant. If such findings were made it would follow that the defendant owed to the plaintiff's employer the duty to exercise reasonable care to keep the basement in the condition for the purposes of passage in which it was, or appeared to be, at the time of the letting (Quinn v. Perham, 151 Mass. 162, 23 N. E. 735;Andrews v. Williamson, 193 Mass. 92, 94, 78 N. E. 737, 738,118 Am. St. Rep. 452;Domenicis v. Fleisher, 195 Mass. 281, 283, 81 N. E. 191;Caruso v. Lebowich, 251 Mass. 477, 478, 146 N. E. 699, and cases cited; Goodell v. Sviokcla, 262 Mass. 317, 159 N. E. 728;Goldsmith v. Ricles [Mass.] 172 N. E. 526) and owed the same, but no greater, duty to the plaintiff. Baum v. Ahlborn, 210 Mass. 336, 338, 96 N. E. 671;Carey v. Klein, 259 Mass. 90, 92, 155 N. E. 868, and cases cited.

The plaintiff contends that the defendant's duty was to use reasonable care to keep the basement in safe condition for the plaintiff's use, irrespective of its condition at the time of the letting, on the ground that the plaintiff was using the premises by invitation implied from the defendant's agreement to furnish janitor service. But no invitation to the tenant to use...

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10 cases
  • McCarthy v. Isenberg Bros.
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • April 2, 1947
    ... ... although those terms are unknown to him. To the same effect ... are Boudreau v. Johnson, 241 Mass. 12 , Telless ... v. Gardiner, 266 Mass. 90 , Grady v. Gardiner, ... 272 Mass. 491 , Cushing v. Jolles, 292 Mass. 72 , ... 75, Garland v. Stetson, 292 Mass. 95 , 99-100, ... ...
  • McCarthy v. Isenberg Bros., Inc.
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • April 2, 1947
    ...To the same effect are Boudreau v. Johnson, 241 Mass. 12, 134 N.E. 359,Telless v. Gardiner, 266 Mass. 90, 164 N.E. 914,Grady v. Gardiner, 272 Mass. 491, 172 N.E. 602,Cushing v. Jolles, 292 Mass. 72, 75, 197 N.E. 466,Garland v. Stetson, 292 Mass. 95, 99, 100, 197 N.E. 679,Harrington v. Dorch......
  • London Tobacco Co. v. Freeman
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • October 28, 1932
    ...Mass. 382, 141 N. E. 114;Kendall v. Tashjian, 258 Mass. 377, 155 N. E. 4;Devine v. Lyman, 270 Mass. 246, 169 N. E. 908;Grady v. Gardiner, 272 Mass. 491, 494, 172 N. E. 602. If the plaintiff, as it contends, was a tenant at will, the letting did not take place earlier than ‘about the 25th of......
  • Sneckner v. Feingold
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • October 28, 1943
    ...or appeared to be at the time of the letting, but rather to use reasonable care to do so. Andrews v. Williamson, 193 Mass. 92 . Grady v. Gardiner, 272 Mass. 491 . Tobacco Co. Inc. v. Freeman, 280 Mass. 368 . Sordillo v. Fradkin, 282 Mass. 255 . Griffin v. Rudnick, 298 Mass. 82 . Marquis v. ......
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