Silver v. Cushner
| Decision Date | 29 June 1938 |
| Citation | 300 Mass. 583,16 N.E.2d 27 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
| Parties | EDITH A. SILVER v. BENJAMIN CUSHNER & others, trustees. |
April 9, 1937.
Present: FIELD DONAHUE, LUMMUS, & QUA, JJ.
Landlord and Tenant, Common stairway, Landlord's liability to member of tenant's family. Negligence, One owning or controlling real estate, Contributory, Assumption of risk. Practice Civil, Exceptions: construction of bill; Pre-trial report. Evidence, Presumptions and burden of proof.
A finding was warranted that negligence of a landlord in control of entrance steps used in common by tenants in a two family house caused injury to a member of the family of one of the tenants who fell on ice formed thereon from water discharged from a drain pipe which to the landlord's knowledge became defective after the tenancy began and a year before the injury.
Where a bill of exceptions contained nothing to show that the action was not tried in accordance with a pre-trial report annexed thereto this court dealt with the case on the basis that matters conceded and admitted in the report were true.
In an action of tort against a landlord for personal injuries, assumption of risk by the plaintiff is an affirmative defence which the defendant must set out specifically in his answer and of which he has the burden of proof.
Evidence, merely that a member of a tenant's family, seeing ice which was on common entrance steps through the landlord's negligence, chose to go over the steps instead of taking time to use another exit or to procure ashes or salt for the ice did not require a finding either that he assumed the risk of an injury caused by his slipping on the ice, or that he was guilty of contributory negligence.
TORT. Writ in the Superior Court dated May 26, 1933. Before Greenhalge, J., a verdict was returned for the plaintiff in the sum of $1,200. The defendants alleged exceptions.
R. J. Walsh, for the defendants.
J. B. Abrams, (H.
Illman with him,) for the plaintiff.
This is an action of tort to recover compensation for personal injuries sustained by the plaintiff by reason of the alleged negligence of the defendants. The answer was general denial and contributory negligence. There was a verdict for the plaintiff. The case comes before us on the exception of the defendants to the denial of their motion for a directed verdict.
The defendants contend that the motion should have been granted on the ground (a) that the evidence did not warrant a finding of negligence on the part of the defendants, or (b) that the plaintiff as matter of law was barred from recovery because she was not in the exercise of due care, or assumed the risk of injury. There was no error in the denial of the motion.
The evidence tended to show that the plaintiff, a girl sixteen years old at the time of the accident, lived with her parents in the upper story of a two-family house. Her father was a tenant at will, paying rent from month to month, and her family had lived in the house about four years before the accident. The front entrance of the house was used in common by both families occupying the house. It consisted of a passageway or steps, the upper steps being of wood and the five lower ones of concrete. The plaintiff, about eight or eight-thirty o'clock in the morning, when on her way to school, fell and broke her leg as a result of slipping on the next to the lowest concrete step. That step and the step below it were covered with ice about a quarter of an inch thick. The evening before the accident water was running "in a stream" "about a foot wide" across the two lowest steps from a leak in a drain pipe which had existed about a year. It was admitted that "due notice was received by the defendants of the time, place and cause of the accident." See G.L. (Ter. Ed.) c. 84, Section 21.
1. A finding was warranted that the plaintiff sustained personal injuries as the result of the negligence of the defendants.
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 condition with respect to safety in which they were, or to a person of ordinary observation would appear to be, at the time of the letting. Goldsmith v. Ricles, 272 Mass. 391 , 396. Wynn v. Sullivan, 294 Mass. 562 , 565. The inference was warranted that the plaintiff was using a common stairway, in the right of her father, a tenant at will of the premises, and that her injury was sustained by reason of an unsafe condition of the part of the premises under the control of the landlord. The sole contention of the defendants on this branch of the case is that the evidence fails to show that the unsafe condition of the premises arose between the time the tenancy of the plaintiff's father under the defendants began and the time the accident occurred.
A pre-trial report is annexed to the bill of exceptions. The bill of exceptions states, however, that except for a reference to this report by counsel for the plaintiff it "was not referred to or offered in evidence at the trial." But there is nothing in the bill of exceptions to show that the case was not tried in accordance with the pre-trial report. Finegan v. Prudential Ins. Co., ante, 147, 148. Compare Capano v. Melchionno, 297 Mass. 1, 14-15. It must be taken that the case was tried in accordance therewith (Eckstein v. Scoff, 299 Mass. 573 , 576), and that the matters therein conceded or admitted were established as true. The "Concessions or Admissions" therein included the following: Ownership of the premises by the defendants, therefore, was established, at least as of the time when the accident occurred.
The plaintiff's mother testified that "the drain pipe was in good condition" when she moved into the house -- about four years before the accident -- and that "she lived in the house for three years and the drain pipe was all right and just about a year before the accident it developed a leak." She also testified that "about a year before the accident the drain pipe started leaking and she had a talk with the landlord," and that the landlord was "Mr. Singer," the man who came to collect the rent and to make the repairs. William Singer, as one of the trustees of the Seaver Investment Association, was one of the defendants. In view of the admitted ownership by the defendants at the time of the accident, a finding was warranted that the premises...
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