Shepard v. Worcester Cnty. Inst. for Sav.
| Decision Date | 30 October 1939 |
| Citation | 304 Mass. 220,23 N.E.2d 119 |
| Parties | SHEPARD v. WORCESTER COUNTY INSTITUTION FOR SAVINGS. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Exceptions from Superior Court, Worcester County; W. C. Giles, Judge.
Action by Walter F. Shepard against the Worcester County Institution for Savings for injuries sustained when the plaintiff, while upon property adjoining that of the defendant, was struck by a piazza railing which came from the third floor piazza of the defendant's property. Directed verdict for defendant, and the plaintiff brings exceptions.
Exceptions overruled.
D. E. Swartz, of Worcester, for plaintiff.
E. J. Sullivan, of Boston, for defendant.
The plaintiff, while upon property adjoining that of the defendant, was struck by a piazza railing, about six feet in length, which came from the third floor piazza of the defendant's property. The case was referred to an auditor whose findings were not to be final. In the Superior Court, the jury specifically found that the railing was in control of the defendant and returned a verdict for the plaintiff. Under leave reserved, the judge granted, subject to the plaintiff's exception, the motion of the defendant for the entry of a verdict in its favor.
Attached to the rear of the building in question are wooden piazzas, extending partially along its width, one for each of the two upper stories and located one over the other. They are supported by wooden upright beams and are covered at the top by a roof which is an extension of the root of the main building. A stairway leads from the yard to each of these piazzas. The flooring of the third floor piazza extends from the landing of the stairway to the easterly end of this piazza, and there is no floor between this landing and the westerly end of the piazza. Each piazza is enclosed by a wooden fence which extends across the entire width of the building. The fence at the westerly end of the third piazza was six feet in length and consisted of two horizontal rails to which were attached fourteen pickets. This fence ran from the corner upright beam to the rear wall of the building. It was located about thirty feet from the ground and was not accessible from the stairways, landings or the third-story piazza.
At about midnight on October 9, 1934, the plaintiff, while standing upon the premises of an adjoining owner and a few feet north of the defendant's premises, heard a noise. He looked up and raised his hand to protect himself from the railing, which fell against a fire escape upon the adjacent property and then struck him.
There was evidence that the second and third floors of the defendant's building had been occupied by the same tenant for eleven years, and that she paid rent to the defendant. Nothing more appears than that the tenant occupied the premises at a fixed rental. In such circumstances, it cannot be assumed that the landlord was bound to make any repairs upon that portion of the premises included within the letting. McKeon v. Cutter, 156 Mass. 296, 31 N.E. 389;Szathmary v. Adams, 166 Mass. 145, 44 N.E. 124;Kearines v. Cullen, 183 Mass. 298, 67 N.E. 243;Fiorntino v. Mason, 233 Mass. 451, 124 N.E. 283;Wurm v. Allen Cadillac Co., Mass., 17 N.E.2d 305.
The railing in question was located upon the third-floor piazza. The tenant had the exclusive use and enjoyment of both of the upper floor and this included the control of the outer walls adjacent to each of these two floors and the right to make use of such portions of the walls as were incidental to the purpose for which the premises were occupied. Lowell v. Strahan, 145 Mass. 1, 12 N.E. 401,1 Am.St.Rep. 422;Whitehouse v. Aiken, 190 Mass. 468, 77 N.E. 499;Conahan v. Fisher, 233 Mass. 234, 124 N.E. 13;Leominster Fuel Co. v. Scanlon, 243 Mass. 126, 137 N.E. 271, 24 A.L.R. 1459;Anderson v. Kopelman, 279 Mass. 140, 181 N.E. 239;Levin v. Rose, Mass., 19 N.E.2d 297.
The railing was apparently erected to improve the appearance of the property. It was not necessary to the stability or strength of the structure or to the safety or convenience of the tenant. Its sole purpose was ornamental. It was available to the tenant for such use as its location might permit in connection with the tenant's business. It was not and could not be used by the landlord in conjunction with any portion of the property that remained in its supervision and control. Its location, design and purpose limited its use to the demised premises. It is settled that, in the absence of any agreement to the contrary, the person who occupies premises, and not the owner, is liable for failure to keep them reasonably safe so that travellers upon the highway will not be injured. Lowell v. Spaulding, 4 Cush. 277,50 Am.Dec. 775;Oakham v. Holbrook, 11 Cush. 299;Clifford v. Atlantic Cotton Mills, 146 Mass. 47, 15 N.E. 84,4 Am.St.Rep. 279;Szathmary v. Adams, 166 Mass. 145, 44 N.E. 124;Munroe v. Carlisle, 176 Mass. 199, 57 N.E. 332;Neas v. Lowell, 193 Mass. 441, 79 N.E. 810;Clapp v. Donaldson, 195 Mass. 39, 80 N.E. 486;Conahan v. Fisher, 233 Mass. 234, 124 N.E. 13.
The case is distinguishable from cases in which the landlord retained control of a piazza used in common by various tenants, or where it was utilized by the landlord in assisting him in maintaining in reasonably safe condition such portions of the property as the roof, eaves, and conductors, which are commonly in the charge of the owner,...
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