Rice v. Rosenberg
| Decision Date | 28 March 1929 |
| Citation | 165 N.E. 667,266 Mass. 520 |
| Parties | RICE v. ROSENBERG. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Exceptions from Superior Court, Suffolk County; W. H. Whiting, Judge.
Action by Theodore Rice against Katie Rosenberg. Verdict for plaintiff, and defendant brings exceptions. Exceptions overruled.S. Markell, of Boston, for plaintiff.
Edward J. Sullivan, of Boston, for defendant.
This is an action to recover for personal injuries received by the plaintiff while on the defendant's premises, situated at No. 324 Blue Hill Avenue, in Boston. The plaintiff occupied an apartment at No. 322 on the third floor of an adjoining building owned by one Matuson. A metal stairway, similar in appearance to a fire escape, was attached in part to the two buildings, starting from a passagewayin the rear and ascending across the rear wall by a series of flights of steps and landings to the roof. The defendant's building consisted of several apartments occupied by tenants. From the rear to go to any part of these buildings, except by a separate stairway to the first floor only, it was necessary to pass over the portion of the stairway attached to the defendant's building. This stairway is about two feet three inches wide. The platforms are of the same width; they are made up of separate sections of material placed on cross beams and are removable.
The plaintiff offered evidence tending to show that on July 6, 1925, at about 4:30 p. m., while ascending the stairway to reach his apartment, he fell through an opening in the second floor landing of the defendant's premises, and was severely injured. At the time of the accident the defendant was engaged in painting and repairing the part of the stairway attached to her premises, and the opening through which the plaintiff fell resulted from the removal by the painters of a section of the landing. There was evidence that no notice or warning that repairs were to be made was given orally, or by posting signs or otherwise; and the plaintiff testified that before the accident he had no knowledge that there was an opening in the second floor landing, and that no barriers or safeguards were placed about the opening. He further testified that he had lived in the same premises for about twelve years, using this rear stairway for nearly eight years for taking down garbage, bringing up coal from the cellar, and for taking down anything that was to be carried to the rear of the premises; that the stairway was used by the tenants of both buildings and was the only one at the rear.
Several persons who had been tenants of the defendant testified that when they hired their premises the defendant told them they could use the stairway. In answer to interrogatories propounded by the plaintiff to the defendant, she stated that she was the owner of the premises at No. 324 Blue Hill Avenue on the date of the accident; that the means of egress from, or access to, the rear of the premises provided for tenants was the fire escape in the rear, and it was for the use of all the tenants; and that the same means of egress from and access to the rear of her premises was provided for the tenants of the premises numbered 322 Blue Hill Avenue.
Upon the foregoing evidence it could not properly have been ruled that the plaintiff was a trespasser in his use of the stairway when he was injured; nor could it have been rightly ruled that he was a bare licensee. Although he was not a tenant of the defendant and had not been expressly invited by her to use the stairway in passing to and from his premises, it could have been found that there was an implied invitation extended to him by her permitting such use. It is the contention of the defendant that the stairway was intended for the use of the plaintiff and other tenants of the building as a fire escape, and could be used only in case of fire. If the evidence showed that it was limited to such use, no duty was imposed upon the defendant to keep it in repair except in case of fire, and the judge so instructed the jury. Landers v. Brooks, 258 Mass. 1, 154 N. E. 265, 49 A. L. R. 562. The evidence warranted a finding that the defendant and the owner of the building occupied by the plaintiff intended that the tenants of both buildings should use the stairway in passing to and from their respective apartments, not merely as a fire escape but for other purposes in connection with their occupancy. If the jury so found, and also found that the defendant negligently permitted a portion of the platform to be removed leaving an open space...
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