Martin v. Reis

• Citation: 181 N.E.2d 580,344 Mass. 32
• Parties: Sarah MARTIN v. Joaquim REIS.
• Decision Date: 30 March 1962
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 580

181 N.E.2d 580

344 Mass. 32

Sarah MARTIN v. Joaquim REIS.

Supreme Judicial Court of Massachusetts, Bristol.

Argued Feb. 6, 1962.

Decided March 30, 1962.

David Entin, Fall River (Michael S. Sahady, Fall River, with him), for plaintiff.

Thomas F. McGuire, Fall River, for defendant.

Before WILKINS, C. J., and SPALDING, WHITTEMORE, CUTTER and KIRK, JJ.

KIRK, Justice.

In this action of tort for negligence, the judge, sitting without jury, awarded damages to the plaintiff for injuries sustained by her when she tripped and fell over a board in an alley which was allegedly a common passageway for the tenants of the defendant. The plaintiff is the wife of one of the defendant's tenants.

The case comes to us on exceptions of the defendant to the refusal of the judge to strike out certain portions of a report by an auditor whose findings of fact were not final, and to his denial of requested rulings of law. At the trial there was oral testimony in addition to the auditor's report.

The bill of exceptions shows that the defendant owned a rectangular parcel of land located at the northeast corner of the intersection of Tremont and Bedford streets (which run north-south and east-west respectively) in Fall River. There were three buildings on the land. One of these was a cottage occupied by the plaintiff and her family and located at the northwest corner of the parcel. The other two buildings were located on the south side of the parcel facing Bedford Street. On these two buildings, the one at the southwest corner was a three story building consisting of a store operated by the defendant and his family on the first floor, and apartments above. The other, which was separated from the last mentioned building by a four-foot passageway or alley, consisted of two stores on the first floor and apartments above. A gate was at the Bedford Street end of the passageway between the two buildings. Along the westerly or Tremont Street side of the defendant's land was a fence, in which there were three gates, all of which gave access to the open area or yard upon which the three buildings abutted. The only means of access to or egress from the cottage was by a door or entry on the south side of the cottage facing the yard. One of the three gates in the fence was near the cottage; the second was wide enough for vehicles to pass; the third was near the rear entrance of the corner building.

The tenancy of the plaintiff's family began in November, 1957. Shortly thereafter all of the land including the passageway, not covered by the buildings, was blacktopped by the defendant. The auditor's report also stated: 'The premises which were blacktopped by the defendant were for the use and enjoyment of the tenants living above the two store buildings and the plaintiff and her family living in the cottage house. The tenants collected waste material in barrels which were maintained in the rear of the buildings and periodically carried to the dump by the defendant's employee. Children also played here. The tenants of all three buildings * * * used the alleyway between the two buildings fronting on Bedford Street.' The fact that children played in the yard was well known to the defendant.

During the week immediately preceding the plaintiff's injury the defendant was engaged in repairing and renovating the stores in the two buildings facing Bedford Street and had used his own employees to do much of the work. Under the defendant's orders and directions debris was removed from the stores and placed on the blacktopped area or against the buildings. No measures were taken to prevent it from being strewn about. One piece of debris so removed was a rough board three by four feet square, one inch thick, with nails all around it.

After dark, about 8:45 p. m. on January 2, 1959, when approaching the northeast corner of the alley or passageway from the yard with the intention of passing through it to get to Bedford Street the plaintiff tripped and fell over the described board and lacerated her knee. Earlier the same evening when it was 'beginning to get dark' the plaintiff had used the passageway and had seen the board on which she fell.

There was no error in the judge's refusal to strike out parts of the auditor's report on the grounds that some of the findings were ambiguous or irrelevant or based upon an erroneous view of the law. Whatever ambiguity there may have been in the auditor's use of the words 'area,' 'areaway,' and 'the area itself,' whether in reference to the place where the plaintiff fell, or to the passageway, or to the place where the debris was piled, did not require the judge to strike out the words or to recommit the report. They were understandable in context. Moreover, the auditor's report was only part of the evidence before the judge. That the factual situation was clear to him upon all the evidence is manifest by his findings hereinafter referred to. We perceive no merit to the other grounds upon which the motion to strike was based.

In disposing of the defendant's requests for rulings, which apparently were based on the theory that the plaintiff was a mere licensee, the judge expressly found 'that where the plaintiff fell was an area intended as part of the letting to be used in common by the tenants;' 'that the obstruction over which the plaintiff fell was placed by a servant of the defendant acting under the control of the defendant * * * in a common area, and it was not put in a place of safety in that the defendant ought to have known that it was in a dangerous place or ought to have foreseen that the board might be or become a dangerous obstruction to anyone lawfully using the common area.'

These findings, made in an action at law, are not to be reversed if they can be supported upon any reasonable view of the evidence including all rational inferences of which it is susceptible. London Clothes, Ltd. v. Maryland Cas. Co., 318 Mass. 692, 697, 63 N.E.2d 577, and cases cited. The auditor's report was clearly susceptible of the the inference that the area where the plaintiff fell, although blacktopped after the commencement of her tenancy was an area intended for the common use of the tenants when the tenancy began, and was actually so used. The blacktopping was but an improvement of the common area or yard intended for the use of tenants. There was, accordingly, no error in...