Kearines v. Cullen

• Decision Date: 21 May 1903
• Parties: KEARINES v. CULLEN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

183 Mass. 298

67 N.E. 243

KEARINES v. CULLEN.

Supreme Judicial Court of Massachusetts, Suffolk.

May 21, 1903

COUNSEL

Edwd.

E. Reardon and Michl. F. Phelan, for plaintiff.

Walter A. Buie, for defendant.

OPINION

BRALEY J.

This is an action of tort for personal injuries suffered by the plaintiff by reason of the giving way of an alleged defective step leading to a tenement in the building owned by the defendant, and hired and occupied at the time by the plaintiff's husband. This building was a dwelling house one story and a half in height, divided into two tenements by a partition through the center, with a front door to each. These doors were abjoining, but were separated by the partition. The thresholds of the doors, being some 12 inches above the ground level, were approached by a step or tread which was six inches above the level, and consisted of a single plank raised on blocks at each end, and extending in front of both doors. There was no rail or other division of the step corresponding with the line of the partition. While using the step which led to her tenement, 'the whole step came out and turned right over,' and the plaintiff received the injury complained of. A verdict having been returned in her favor, the defendant excepted to the refusal to give certain rulings requested at the trial. The third ruling asked was 'that upon all the evidence the plaintiff is not entitled to recover,' and, as this raises the principal question argued by the parties, we proceed to consider it first.

The defendant contends that upon the evidence the step was not an approach 'to be used in common by the tenants to the tenement,' but was let with and passed as appurtenant to each tenement, and that he retained no possession of or control over it. From the meager recitals in the bill of exceptions, it does not appear that originally in hiring the tenement occupied by the plaintiff's husband and herself, anything more took place between him and the owner at the time than the renting of the house as it then was, at a fixed weekly rental. When the defendant subsequently acquired title to the property, no change as to occupancy had taken place. Both tenements were occupied by tenants, one of whom was the plaintiff's husband. At the time he purchased, the defendant examined the premises. The persons then in possession adn occupation became his tenants and no modification or change of the terms of the original contract appears. The legal rights of the parties must be determined by the implied contract made between them under which the plaintiff's husband became the tenant at will of the defendant. As such tenant he had the possession and control of the tenement. Rogers v. Coy, 164 Mass. 391, 392, 41 N.E. 652, and cases cited. It was his house, as between him and the defendant, and a necessary part of the house was the step leading to, and making it accessible from, the public way. There was no testimony given at the trial that at the time when the plaintiff's husband hired the tenement so occupied by him the owner of the estate, or, when the title passed to him, that the defendant was to maintain and keep in repair the step so used as an aproach to each tenement, or that there was any occasion or necessity for persons passing from the highway to either tenement, or...