Poland v. Otto

• Decision Date: 05 January 1923
• Citation: 243 Mass. 405,137 N.E. 663
• Parties: POLAND v. OTTO et al. SAME v. FALES.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

243 Mass. 405

137 N.E. 663

POLAND

v.OTTO et al.

SAME

v.FALES.

Supreme Judicial Court of Massachusetts, Suffolk.

Jan. 5, 1923.

Report from Superior Court, Suffolk County; Henry F. Lummus, Judge.

Actions of tort by Frank Poland against Edward Otto and others, and against Haliburton Fales, for personal injuries caused by bricks falling from a building owned by the defendant Fales and occupied by the other defendants. Reported from the superior court after directed verdicts for defendants, on condition that, if the rulings to which exceptions were taken were right, the verdicts are to stand, and otherwise such order to be entered as justice may require. Verdicts sustained.

Wm. F. Mackernan and Charles H. Stebbins, both of Boston, for plaintiff.

Sawyer, Hardy, Stone & Morrison, of Boston (Wilford D. Gray, of Boston, of counsel), for defendant Fales.

Joseph A. Dennison and Robert Gallagher, both of Boston, for defendants Otto and Schumann.

DE COURCY, J.

The jury could find these facts. In the afternoon of May 8, 1916, the plaintiff came out of the store numbered 66 Broad street in Boston; and when on the sidewalk immediately in front of the entrance he heard a noise from above, looked up and saw a shower of bricks falling toward him. He was struck by one or more bricks, and sustained the personal injury for which these actions are brought.

The premises consisted of a 3 1/2-story building with a slate roof. The front had a coping of three or four courses of brick, projecting an inch or an inch and a half over the face of the wall. On the morning of the accident one Penshorn, a roofing contractor, had put up a box staging, extending the width of the building, and suspended about 3 feet below the gutter; and his employees removed the gutter, which was of metal, and rusted. At about 11 o'clock he noticed that in the top courses of the wall, over the entrance to the premises, there were loose bricks, and for some distance the mortar was ‘stale and lacking life.’ After the accident he found on the staging 28 bricks which had fallen from said top courses, and on the sidewalk half a brick which had ‘bounded off the stage.’ At the time of the accident a heavy, loaded truck passed by the premises, and the building vibrated. His men were then on the roof some 10 feet up from the front.

There was introduced in evidence a lease of the land and building, from Haliburton Fales to Edward Otto for the term of five years beginning January 1, 1915. It was dated December 1, 1913, and on it was an assignment of the same date to the Harvard Brewing Company. The lease contained a provision that Otto would do all necessary repairs, would keep the premises in such repair and condition as they were in at the commencement of the term, and that he would indemnify the lessor against any injury, loss or damage to any person or property on the premises. At the time of the accident Otto was carrying on business in partnership with the defendant Louis Schumann; but it does not appear whether all or only some portion of the building was occupied by the partners.

These two actions were brought on January 3, 1917, and were tried together. Apparently a third action was brought against Penshorn, but no question is now before us with reference to it. In both these cases the trial judge directed a verdict for ...