Looney v. McLean

Decision Date25 June 1880
Citation129 Mass. 33
PartiesEllen Looney v. Archibald McLean
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Argued November 17, 1879

Suffolk. Tort for personal injuries occasioned to the plaintiff by a fall from a staircase in a dwelling-house in Boston, owned or occupied by the defendant. Trial in this court, before Ames J., who allowed a bill of exceptions in substance as follows:

The defendant was in the habit of letting tenements in the house in question to various tenants. The plaintiff's husband hired a tenement of the defendant, and began to occupy it on May 11, 1878. There was evidence that, at that time, the defendant pointed out the top of an outbuilding, connected with the house, as the place where the plaintiff was to hang out clothes for drying. There was a staircase in two flights leading from the ground of the back yard to the top of the outbuilding; and the plaintiff, on May 15, while going up the stairs to hang out her clothes for drying upon the roof received the injuries complained of, in consequence of the giving way of one of the steps of the staircase. It was admitted that the defendant knew that the stairs were greatly decayed and unsafe, and there was no evidence that he cautioned or notified the plaintiff that they were so. The tenants in the building were in the habit of passing through the rooms on the second story occupied by a tenant, when they had occasion to go to said roof. Whether this access to the roof was pointed out to the plaintiff was in dispute, and the evidence on that point was conflicting. There was no other visible external means of access to the roof except by the above described stairs. It was in evidence that the stairs had been substantially disused for many years. Some of the witnesses testified that two of the steps were broken away and had wholly disappeared, two years before the accident. The plaintiff testified that only one step was missing, and that she undertook to go up the stairs, not knowing that there was any other access, and, on cross-examination, testified that when she began to go up the steps she heard a crack under her feet, and felt a sort of yielding under her, but made haste to go up without any further examination into the condition of the stairs.

The defendant asked the judge to rule as follows: "1. A landlord does not guarantee the soundness of the premises let to his tenants, nor is there any implied warranty or guaranty on his part. 2. If the jury find that the steps in question were not used as a means of access to the shed where clothes were hung to dry, then the plaintiff went upon them at her own risk, and the defendant is not liable for the injuries received thereby. 3. The fact that the plaintiff has testified that she hurried up the steps without observing their condition at the time, and that she made no inquiries whether those steps were used for the purpose of access to the shed, is such evidence of the want of due care on her part that she is not entitled to recover. 4. If the jury find that two steps were gone at the time of the accident, and the plaintiff attempted to pass over them, she was not then in the exercise of due care, and is not entitled to recover."

The judge declined so to rule, and instructed the jury as follows: "In the case of landlord and tenant, there is no implied warranty on the part of the former that the demised premises are tenantable or in good condition, the tenant being supposed to examine and judge for himself. This rule, however, does not literally apply to the passageways staircases and door-steps that are meant for general use by all the tenants; and no one of the tenants is responsible for the repairs of such places. The landlord is bound to keep such parts of the premises as are intended for the common use of all the tenants in such a state of repair that they can be...

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134 cases
  • Trimble v. Spears
    • United States
    • Kansas Supreme Court
    • January 25, 1958
    ...uses which he invites others to make of them. McGinley v. Alliance Trust Co., 168 Mo. 257, 66 S.W. 153, 56 L.R.A. 334; Looney v. McLean, 129 Mass. 33, 37 Am.Rep. 295; Readman v. Conway, 126 Mass. 374. The facts speak for themselves; the law is so well settled that it is unnecessary to cite ......
  • Miller v. Geeser
    • United States
    • Missouri Court of Appeals
    • November 2, 1915
    ... ... 589; Trunk Co. v. Delano, ... 162 Mo.App. 402; McGinley v. Alliance Trust Co., 168 ... Mo. 257; Bender v. Weber, 250 Mo. 563; Looney v ... McLean, 129 Mass. 33; Siggins v. McGill, 62 A ... 411; Readman v. Conway, 126 Mass. 374; Burke v ... Hulett, 216 Ill. 545; Sawyer ... ...
  • Tippecanoe Loan And Trust Company v. Jester
    • United States
    • Indiana Supreme Court
    • May 9, 1913
    ... ... Fleisher (1907), 195 Mass ... 281, 81 N.E. 191; Andrews v. Williamson ... (1906), 193 Mass. 92, 78 N.E. 737, 118 Am. St. 452; ... Looney v. McLean (1880), 129 Mass. 33, 37 ... Am. Rep. 295; Readman v. Conway (1879), 126 ... Mass. 374; Miller v. Hancock (1893), 2 Q ... B ... ...
  • Pyke v. City of Jamestown
    • United States
    • North Dakota Supreme Court
    • February 15, 1906
    ... ... Mich. 477; Reed v. Northfield, 13 Pick. 94; ... Frost v. Waltham, 12 Allen, 85; Whittaker v ... West Boylston, 97 Mass. 273; Looney v. McLean, ... 129 Mass. 33; Walker v. Decatur Co., 67 Iowa 307; ... Kendall v. Albia, 73 Iowa 341; Village of ... Orleans v. Perry, 40 ... ...
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