Kirby v. Tirrell

• Decision Date: 23 June 1920
• Citation: 128 N.E. 28,236 Mass. 170
• Parties: KIRBY v. TIRRELL.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

236 Mass. 170

128 N.E. 28

KIRBY

v.TIRRELL.

Supreme Judicial Court of Massachusetts, Worcester.

June 23, 1920.

Exceptions from Superior Court, Worcester County; Franklin T. Hammond, Judge.

Action of tort for personal injuries to a tenant's invitee by Catherine M. Kirby against Warren Tirrell.Verdict was directed for defendant, and plaintiff excepts.Exceptions overruled.

Shelley D. Vincent, of Milford, for plaintiff.

Francis P. Garland and Hurlburt, Jones & Hall, all of Boston, for defendant.

DE COURCY, J.

The defendant was owner of a two-family tenement house, the approach to which consisted of a flight of outside steps and a piazza leading to the front door.On December 12, 1916, the plaintiff came to the house on the express invitation of the upstairs tenant, Fred Grandmont, and ‘there was evidence that she was injured by reason of breaking through a board of the piazza with her left foot as she stepped onto the piazza to enter the house.’The board did not break into separate pieces, but the end on which she stepped went down, and ‘she became fast, just below the knee, in the hole where the board gave way.’The trial judge directed a verdict for the defendant.

The controlling question presented is whether there was sufficient evidence to entitle the plaintiff to go to the jury on the issue of the defendant's negligence.The piazza upon which the plaintiff was injured was used in common by the tenants, and remained in the control of the defendant landlord.His duty to the tenant Grandmont, and concededly to the plaintiff as the tenant's invitee, was ‘that of due care to keep it in such condition as it was in, or purported to be in, at the time of the letting,’ which was in May, 1916.Quinn v. Perham, 151 Mass. 162, 163, 23 N. E. 735.This phrase was defined in Andrews v. Williamson, 193 Mass. 92, 94, 78 N. E. 737, 738(118 Am. St. Rep. 452) as meaning ‘such condition as it would appear to be to a person of ordinary observation, and has reference to the obvious condition of things existing at the time of the letting.’And, as the court adds (193 Mass. 95, 78 N. E. 738[118 Am. St. Rep. 452]), ‘if the defect of which the plaintiffs complain was obvious at the time of the letting, then the defendant was not liable.’

The plaintiff wholly failed to show what was the condition, apparent or real, of the piazza floor at the time of the letting, or indeed at any other time prior to the accident.So far as the record discloses, it had...