Harris v. Ellis Realty, Inc.

• Decision Date: 05 April 1966
• Citation: 350 Mass. 520,215 N.E.2d 797
• Parties: William HARRIS v. ELLIS REALTY, INC.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 797

215 N.E.2d 797

350 Mass. 520

William HARRIS v. ELLIS REALTY, INC.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Feb. 8, 1966.

Decided April 5, 1966.

Sturtevant Burr, Boston, for defendant.

James N. Gabriel, Boston, for plaintiff.

Before WILKINS, C.J., and WHITTEMORE, CUTTER, SPIEGEL, and REARDON, JJ.

CUTTER, Justice.

Harris seeks to recover for injuries suffered when he fell to the sidewalk from a metal fire escape (at the level of the floor above the street floor) through a hole in the platform of that fire escape. This hole gave access to a vertical ladder to the sidewalk. The case is before us upon exceptions to the trial judge's refusal to direct a verdict for the defendant (Ellis) and to enter a verdict for Ellis under leave reserved. The evidence is stated in its aspect most favorable to Harris.

Harris rented an apartment above a street floor store from Ellis in 1949 through Ellis's agent. A window in the apartment opened toward a fire escape platform running across the building from apartment to apartment. At the time of the letting, 'therewas someone sitting on the fire escape of the apartment across from the one * * * subsequently rented.' In reply to a question, the agent told Mrs. Harris that 'it was permissible to use the fire escape.' While the Harris family lived at the premises, use was made of the fire escape by tenants of the apartments to sit there together and to walk across the platform. The agent never objected to this use. The agent on request would remove debris from the platform.

After the 1949 letting, 'a sign had been added to the front of the building.' In 'securing it * * * a wire had been strung across part of' the platform.

On June 23, 1956, Harris returned to the apartment at 3:30 or 4 A.M. A 'tenant who lived at the other end of the fire escape came in and said that he had lost his key.' Harris 'went out on the fire escape for the purpose of going through the tenant's window, into his apartment, and opening his door.' He 'grabbed the rail with his left hand and started walking to the further window.' He then 'slipped on something,' hit the wire, 'bounced back * * * lost (his) balance and * * * went down through the hole.' He knew that the hole and the wire were there. After the accident, witnesses saw a piece of canvas or linoleum, flower pots, and some pieces of wood or sticks on the platform near the hole. Mrs. Harris testified that she had asked the agent to clear up this material about a week before the accident.

We hold that a verdict should have been directed for Ellis. We think that any invitation to use the fire escape, which certainly was not a common passageway for general use (cf. Sullivan v. Hamacher, 339 Mass. 190, 193--195, 158 N.E.2d 301; Mikaloros v. Stamatouras, 348 Mass. 700, 701, 206 N.E.2d 62), did not extend to its use at night as an entrance to another apartment by a tenant feeling his way in the dark (see Palmer v. Boston Penny Sav. Bank, 301 Mass. 540, 544, 17 N.E.2d 899, 120 A.L.R 633) to reach it. This was not a normal use of the fire escape, not shown by the evidence to have been lighted at night, nor was it a use reasonably comparable to any use which the agent had permitted or in which he had acquiesced. See Wozniak's Case, 299 Mass. 471, 474, 13 N.E.2d 297. The landlord was not bound to keep the fire escape safe for uses to which it was not meant to be put and for which, as a photograph in evidence indicates, it was ill suited. See Cohen v. Davies, 305 Mass. 152, 154, 25 N.E.2d 223, 129 A.L.R. 735. See...