Martin v. Richards

• Citation: 155 Mass. 381,29 N.E. 591
• Parties: MARTIN v. RICHARDS, (three cases.)
• Decision Date: 08 January 1892
• Court: United States State Supreme Judicial Court of Massachusetts

155 Mass. 381

29 N.E. 591

MARTIN v. RICHARDS, (three cases.)

Supreme Judicial Court of Massachusetts, Suffolk.

January 8, 1892

COUNSEL

C.M. Barnes and J.H. Morison, for plaintiffs.

Ranney & Clark, for defendant.

OPINION

LATHROP J.

The first case is brought by a tenant at will against his landlord for injuries sustained in consequence of noxious odors emanating from a disused privy vault on the demised premises. The second case is brought by the wife of the plaintiff in the first case for similar injuries. The third case is by the administrator of the estate of the infant child of the plaintiffs in the other two cases. It is agreed that the same disposition is to be made of the three cases and we shall deal with them as if the first action had alone been brought. The grounds upon which the plaintiff bases his action are that the privy vault was a source of danger; that at the time of the letting it was known to the landlord to be dangerous; that he did not disclose this to the tenant; and that it was not discoverable by the tenant. If the evidence is sufficient to warrant the jury in finding that these propositions are proved, he is entitled to recover. Minor v. Sharon, 112 Mass. 477; Cowen v. Sunderland, 145 Mass. 363, 14 N.E. 117; Cutter v. Hamlen, 147 Mass. 471, 18 N.E. 397; Cesar v. Karutz, 60 N.Y 229; Coke v. Gutkese, 80 Ky. 598. See, also Bowe v. Hunking, 135 Mass. 380; Stevens v. Pierce, 151 Mass. 207, 23 N.E. 1006. "But it is not enough that the landlord knows of the source of the danger, unless also he knows, or common experience shows, that it is dangerous. He is bound at his peril to know the teachings of common experience, but he is not bound to foresee results of which common experience would not warn him, and which only a specialist would apprehend." HOLMES, J., in Cutter v. Hamlen, ubi supra. In the case at bar the justice who presided at the trial in the superior court excluded certain evidence offered by the plaintiff, and, at the close of the plaintiff's evidence, directed a verdict for the defendant. The hiring by the plaintiff was on December 24, 1888. The yard of the house at this time was, except a narrow strip at one side, entirely boarded over. About eight feet from the house was a place five feet by six feet five inches, which was elevated an inch to an inch and a half above the rest of the yard, and this place was covered with boards nailed down. About the middle of June, 1889, the plaintiff and his family were troubled by bad odors, which nauseated them and made them ill. During the next month these odors continued, and the infant child contracted diphtheria and died. The odors were found to come from beneath the elevated place in the yard; and, on taking up the boards, the vault of an old privy was found, partially filled with fecal matter and stagnant water, and giving forth foul odors. There was evidence that as early as July, 1886, there was a privy shed and an excavation beneath where these raised boards were in 1888; and that in September, 1886, the defendant, as owner of the premises, had been notified by the board of health of the city of Boston that "the vault should be cleaned." This evidence was admitted "for the simple purpose of showing that the defendant knew there was a vault there in 1886, but not its condition." As no exception was taken to the partial exclusion of this evidence, we need not discuss it further than to say that, while it is clear that the notice was not substantive evidence of the condition of the vault, we see no reason why it was not admissible to show that the defendant had his attention called to the condition of the vault at this time. There was also evidence that in 1886, shortly after this notice, the shed was removed, a small barrel of lime put into the vault, and some of the boards which had formed the shed were nailed over the vault.

The first exception of the plaintiff is to the exclusion of the testimony of one Reddy, an inspector of the board of health of the city of Boston, who examined the vault on August 4 1886, and who was not permitted to testify what its condition then was. The only objection which the defendant makes to this testimony is that it tended to show merely the temporary condition of the vault in August, 1886, and that, as two years and a half elapsed before the letting, it cannot be said that this condition would or might continue. There is, however, in the case, evidence that offensive odors came from the vault from July, 1886, down to the time of the filling in July, 1889; and that nothing had been done to it in the mean time, except to put in a small barrel of lime, and to cover it over. The evidence, if admitted, might have shown the condition of the vault not to be merely temporary, but to be lasting in its effects, and such that it could not be remedied by the means used. We are of opinion that the evidence was competent, and should have been admitted. See Cutter v. Hamlen, 147 Mass. 471, 18 N.E. 397; Brooks v. Petersham, 16 Gray, 181. In Cowen v. Sunderland, ubi supra, some facts appear in the papers on file which are not fully stated in the opinion. The plaintiff fell into a cess-pool in August, 1886. The letting was in April of that year. The cess-pool had been covered about a year before the accident, in the presence of the defendant, with one-inch boards, with more than one thickness in some places. Although these boards were old, the person who did the work testified that he did not know whether they had been used before or not, and this was the only evidence on the subject. Over the boards were four or five inches of loam and gravel. Although there was evidence that the boards were decayed when the cess-pool was examined after the accident, there was no other evidence to show that they were in this condition, either when the cess-pool was covered or when the premises were let. It was on this evidence that Mr. Justice DEVENS said: "From the testimony of the witnesses of these repairs, the jury might fairly have inferred that it...