Maionica v. Piscopo
| Decision Date | 31 March 1914 |
| Citation | 104 N.E. 839,217 Mass. 324 |
| Parties | MAIONICA v. PISCOPO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Charles Wood Bond and Joseph T. Zottoli, both of Boston, for plaintiff.
Sprout & Kendall, William Reed Bigelow, and Alexander L. Nickerson all of Boston, for defendant.
DE COURCY, J.
The defendant was owner of a 5-story building containing 16 tenements, situated on the corner of Moon and Fleet streets in Boston; and the plaintiff had been a tenant therein for 9 years at the time of the accident. From the front entrance on the street there runs a practically straight hallway to the back door, where there is located an iron platform with iron steps descending therefrom into the back yard. The platform and steps were attached to the wall of the building, and the outer side of each was guarded by an iron railing or fence. On May 12, 1911, as the plaintiff stepped from the hallway to the platform she slipped, and while in the act of falling she grasped this railing; but it gave way, and she was thrown to the ground and seriously injured.
We do not understand that the plaintiff's due care is in dispute. There was ample evidence that the iron railing although apparently in good condition, was in fact so eaten into by rust that it afforded no real protection. Seasonable examination would have disclosed this defective condition, as was demonstrated by the appearance of the fragment that was exhibited in evidence.
The platform and the back stairs connected with it were used in common by the various tenants of the building. The duty of keeping this railing in as good condition as it appeared to be in at the beginning of the plaintiff's existing tenancy was imposed upon the person in whose control it remained. Domenicis v. Fleisher, 195 Mass. 281, 81 N.E. 191, and cases cited. Unquestionably that control and duty rested upon either the defendant or one Zerella. If the paper in evidence, purporting to be a lease of the entire building from the defendant to Zerella, was a genuine and complete statement of their interest in the property in question, then the defendant was under no obligation to the plaintiff to maintain this railing, and the jury were so instructed. But however binding this paper may have been between Piscopo and Zerella, the plaintiff was not a party thereto and was not bound by it. Wilson v. Mulloney, 185 Mass. 430, 70 N.E. 448. Her contention was that the alleged lease was a sham, a mere paper transaction devised to shield the owner of the property from the responsibilities of ownership; or at least that whatever Zerella's real right was in the property, the defendant and not Zerella was in control of the platform and railing at the time of the accident.
The bulk of the testimony was directed to this controlling issue. Among other things it appeared that although the term of this lease purported to be for 5 years beginning October 1, 1910, the defendant had given to Zerella an earlier lease for 3 years, beginning November 1, 1909, when a similar and unexpired lease to one Melchionna was outstanding. There was also evidence tending to show that when Zerella attempted to raise the plaintiff's rent...
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