Shwartz v. Feinberg
| Decision Date | 25 June 1940 |
| Citation | 28 N.E.2d 249,306 Mass. 331 |
| Parties | ISADORE SHWARTZ v. ANNIE M. FEINBERG. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
May 8, 1940.
Present: FIELD, C.
J., LUMMUS, DOLAN COX, & RONAN, JJ.
Landlord and Tenant, Landlord's liability to tenant or his family or his invitee, Common stairway. Evidence, Of presence of object.
Evidence warranted a finding of liability of a landlord to his tenant for injuries sustained in a fall due to an "old," "dirty looking" nail which had protruded from a step of a common stairway for some two months before the accident but had not so protruded at the time of the letting.
A finding that a nail did not protrude from a step in a stairway of a tenement house at a particular time was warranted by testimony of the person in charge of repairs for the owner, that he "looked over" the stairway at regular intervals and had never seen a protruding nail.
TORT. Writ in the Superior Court dated August 26, 1936. At the trial before Brogna, J., there was a verdict for the plaintiff in the sum of $2,500. The defendant alleged exceptions.
H. F. Tracy, for the defendant.
F. J. Monahan, (P.
J. Feinberg with him,) for the plaintiff.
The jury returned a verdict for the plaintiff, and the denial of the defendant's motion for a directed verdict, subject to the defendant's exception, presents the only question. It is not contended that the plaintiff was contributorily negligent.
The defendant admitted that, at the time of the plaintiff's injuries she was the owner of the house, one tenement of which was occupied by the plaintiff as a tenant, and that she was in control of the common back stairway upon which he was injured. The jury could have found that on April 18, 1936, as the plaintiff was descending the stairway, his foot "struck" a nail, causing him to fall. The nail was about an inch from the edge of the step and between five and six inches from the wall, which was on the plaintiff's left, and it was bent to the right. There was a groove on the step about an inch long, extending from the nail hole to the right, and the nail was "about an inch out of the hole about a half inch up from the step." The plaintiff had never seen the nail before he fell. About two months before the injury, the nail was observed to be bent to the right over the groove and exposed about an inch. A few days later it was observed that the nail was in the groove, "having been hammered down into . . . [it] so that you could just see the line of the nail above the floor of the step." About a month before the injury, when the nail was observed again it was in the same groove, about an inch out of the hole and a quarter to a half inch up from the step. The witness who testified to these observations also testified that she did not notice any nail that "stuck up at this point" prior to the time she first saw it, although she had visited the plaintiff's wife once or twice a week for a year and eleven months before the injury, and observed the steps in going up and down, but that she noticed nothing prior to the first time that she saw the nail "because there was no reason for her to look to see whether or not anything was there." When she first noticed the nail it was "all dirty around there; it was brownish looking; she wouldn't say it was rusty; it had a dirty look about it; it wasn't a clean looking nail; it was old, rusty and dirty looking." About nine or ten weeks before the injury, the nail was observed by the plaintiff's wife to be "slanted" to the right over the groove and about a half inch out of the hole. Five or six days later she observed that the nail was bent into the groove, and about two weeks before the injury she saw that it was "sticking out" from the hole between a quarter and a half inch from the step. She also testified that she did not see the nail at any time prior to her first observation; that she swept the stairs sometimes once a week, sometimes once in two weeks, and that while sweeping, she was looking down.
We are of opinion that the jury could find that the plaintiff was injured by reason of a defect in the stairway that rendered it unsafe and dangerous, and that this condition had existed for a sufficient time before the plaintiff was injured for the defendant, in the exercise of reasonable care and diligence, to have discovered and remedied it. Serota v. Salmansohn, 256 Mass. 224. Shavelson v. Marcus, 273 Mass. 237 . Solomon v. Boston Elevated Railway, 276 Mass. 139 , 141. Loudon v. Beaulieu, 277 Mass. 33 , 35. Hillis v. Sears, Roebuck & Co. 284 Mass. 320 . Pauley v. Brockton Savings Bank, 305 Mass. 517. See Frappier v. Lincoln Stores, Inc. 279 Mass. 14; Pastrick v. S. S. Kresge Co. 288 Mass. 194 , 196. Compare Leslie v. Glazer, 273 Mass. 221 . The permissible findings as to the condition of the stairway distinguish the case at bar from Jennings v. Tompkins, 180 Mass. 302 , and Johnson v. Fainstein, 219 Mass. 537 .
"The plaintiff must recover, if at all, on the familiar principle that, in the absence, as here, of express agreement, a landlord owes a duty -- breach of which would constitute negligence -- to a tenant, and to persons using the premises in his right, to exercise reasonable care to keep the part of the premises remaining in the control of the landlord in the...
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