Phelan v. Fitzpatrick

• Decision Date: 19 May 1905
• Citation: 74 N.E. 326,188 Mass. 237
• Parties: PHELAN v. FITZPATRICK.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

188 Mass. 237

74 N.E. 326

PHELAN v. FITZPATRICK.

Supreme Judicial Court of Massachusetts, Suffolk.

May 19, 1905

COUNSEL

J. J. Feely and Roger Clapp, for plaintiff.

Carver & Blodgett, for defendant.

OPINION

MORTON, J.

This is an action of tort to recover for injuries sustained by the plaintiff in consequence of a fall from a platform in the third story of a building belonging to the defendant. The fall was caused by the breaking of the railing while the plaintiff was taking in clothes from a line attached to the railing. The plaintiff lived with her parents, who occupied a tenement on the third floor of the building. The court ordered a verdict for the defendant, and the case is here on the plaintiff's exceptions to that ruling.

The plaintiff stands in no better position than her parents would have stood in if either one of them had been injured under like circumstances. She was in under their rights as tenants. Wilcox v. Zane, 167 Mass. 302, 45 N.E. 923. And it is plain, it seems to us, that that portion of the platform where the railing was constituted a part of the tenement which was hired by them, and which the defendant let to them. It is true that stairs connecting the various tenements with the yard went from one platform to the other. But the common use of the platforms was confined to so much of them as was occupied by the stairs and was reasonably incident thereto. The rest of the platforms was used by those occupying the tenements with which they were severally connected. The platform connected with the tenement occupied by the plaintiff and her parents was used by them to store wood and coal on, and for other private purposes. The water-closet belonging to the tenement was situated there and the clothesline--whoever put it there, on which there was some dispute--was not a line for common use, but for the use of the occupants of the tenement. In hiring the tenement the rule of caveat emptor applied, therefore, to the platform and the railing, as well as to the rest of the tenement. The plaintiff's parents took the tenement in the condition in which it was, and the defendant was under no obligation to repair the railing, if it needed repair, or to make subsequent repairs.

Booth v. Merriam, 155 Mass. 521, 30 N.E. 85; Bowe v. Hunking, 135 Mass. 380, 46 Am. Rep. 471; McLean v. Fiske Wharf & Warehouse Co., 158 Mass 472, 33 N.E. 499; Szathmary v. Adams, 166 Mass. 145, 44 N.E. 124. The...