Palmigiani v. D'Argenio

• Decision Date: 09 January 1920
• Citation: 234 Mass. 434,125 N.E. 592
• Parties: PALMIGIANI v. D'ARGENIO et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

234 Mass. 434

125 N.E. 592

PALMIGIANI

v.D'ARGENIO et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Jan. 9, 1920.

Exceptions from Superior Court, Suffolk County; Loranus E. Hitchcock, Judge.

Action by Josephine Palmigiani against Maria D'Argenio and others. Verdict for defendants, and plaintiff excepts. Exceptions overruled.

E. H. Savary, of Boston, for plaintiff.

Jos. T. Zottoli, of Boston, for defendants.

BRALEY, J.

It having been settled by numerous decisions that because the stairs on which the plaintiff fell were let as part of the tenement to her husband and over which no control was exercised or retained by the defendant, there can be no recovery for personal injuries suffered by the tenant or members of his family unless at the time of the letting the landlord by special agreement undertakes to make repairs either with or without notice, the plaintiff introduced evidence from which the jury could find that the defendant did agree to repair ‘an alleged existing defective condition on the stairway, and thereafter keep the premises safe during the tenancy.’ Fiorntino v. Mason, 233 Mass. 452, 124 N. E. 283;Baum v. Ahlborn, 210 Mass. 336, 338, 96 N. E. 671. But the jury having answered in the negative the following question, ‘Did the defendants agree with the plaintiff's husband as a part of the renting of the premises by him, to keep the cellar stairway therein safe at all times during the tenancy, for the use of the tenant and those claiming under him?’ the plaintiff's exceptions are limited to the refusal of the presiding judge to instruct the jury that:

‘If you believe that the defendants violated the provisions of section 127 of chapter 550, Acts of 1907, in failing to maintain these steps in such repair as not to be dangerous that is evidence of negligence on part of the defendants. Section 127 * * * provides that owners of structures shall maintain their premises in such repair as not to be dangerous. If you believe that the owners of this building failed to maintain these steps in such repair, that they were dangerous, and the injury to the plaintiff was caused by such failure, your verdict should be for the plaintiff’

-and to the instructions which were given on the questions raised by the requests. The statute which consists of 134 sections is entitled an act relative to the construction and maintenance of buildings in the city of Boston, after creating a department to be called the building department to be under the charge of the street commissioner, prescribes certain requirements for the construction and maintenance, and proper lighting, plumbing and ventilation of all kinds of buildings, both public and private, whether constructed after, or existing at the time of enactment, and imposes a fine ‘not exceeding five hundred dollars' for any violation of the act....