Leonard v. Storer

• Decision Date: 09 April 1874
• Citation: 115 Mass. 86
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: George W. Leonard & wife v. David Humphreys Storer

115 Mass. 86

George W. Leonard & wife v. David Humphreys Storer

Supreme Court of Massachusetts

April 9, 1874

Suffolk. Tort to recover for injuries sustained by the female plaintiff on account of snow and ice sliding from a building owned by the defendant upon her. In the Superior Court the following facts were agreed:

"That in the winter of 1869, the defendant was the owner of a building on the southerly side of Winter Street, in the city of Boston, and contiguous to said street; that the said building was covered by a slated, pitched roof, (the pitch of which is thirty-two degrees,) upon which snow and ice collected and slid into said street, in the winter season, to the same extent to which it collected upon and slid from other pitched roofs, of said pitch, and there was no guard or protection upon the building to prevent it from so sliding that said Winter Street was a public highway in the city of Boston, and the female plaintiff was passing along on said street, as she lawfully might, and as she was so passing along and using due care, and without any fault of hers, the snow and ice slid from the roof of said building upon her whereby she was injured; that on the first day of May, 1857 the defendant leased the said building and premises to Jacob Fullerton, for the term of fifteen years, from that date, by a written lease, duly executed, by the terms of which the lessee took the entire building and agreed to 'make all needful and proper repairs, both external and internal, of the demised premises,' and the right was reserved to the lessor to 'enter or send agents into and upon the same to examine the condition thereof;' that Fullerton took possession of the building under his lease, and was in possession thereof at the time of the accident; that the roof of the building at the time of the accident was in the same condition as when the lease was executed, it not having been altered or repaired during the time."

On these facts the Superior Court ordered judgment for the defendant, and the plaintiffs appealed to this court.

Affirmed.

R Lund, for the plaintiffs. Upon the facts agreed in this case, either the defendant or the tenant is liable to the female plaintiff for her injuries in this form of action. Shipley v. Fifty Associates, 101 Mass. 251; 106 Mass. 194. The only question here to be determined is, whether upon the facts in the case the defendant, who is the owner of the building, is liable. Had the building been leased to different tenants, each one having a lease of different portions, all the questions would have been fully settled by the case above cited. But the defendant insists, that, as this was all leased to one tenant, the tenant had the full control of the entire building, and therefore the defendant is not liable. This might be so, if the accident had happened in consequence of any nuisance which the tenant had erected, or any change in the structure of the roof which he had made. But the roof is in the same condition as when the lease was made. The tenant has not reconstructed it, or in any way interfered with it, and by the terms of the lease he had no right to make any change, only to make repairs, and then only to put it in as good condition as it was before. The lease provides what the tenant shall do, but does not provide for any change in the roof. The accident...