Sodekson v. Lynch

• Decision Date: 28 June 1943
• Citation: 314 Mass. 161,49 N.E.2d 901
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: RUTH E. SODEKSON v. MAURICE B. LYNCH & another.

314 Mass. 161

49 N.E.2d 901

RUTH E. SODEKSON v. MAURICE B. LYNCH & another.

Supreme Judicial Court of Massachusetts, Suffolk.

June 28, 1943

November 17, 1939.

Present: FIELD, C.

J., DONAHUE LUMMUS, DOLAN, & RONAN, JJ.

Landlord and Tenant, Lights, Common stairway, Landlord's liability to tenant or his family or his invitee, Existence of relation Time of letting. Municipal Corporations, Officers and agents. Boston. Evidence, Public record, Of intestacy, Competency. Night. Witness, Refreshment of recollection. Negligence Contributory. Words, "During the night."

St. 1907, c.

550, Section 45, as amended by St. 1924, c. 136, required that lights provided on a "main stairway" in the city of Boston, designated as therein provided, be kept lighted during the night.

Formal proof of the appointment of one to the office of building commissioner of Boston was not necessary in proving a designation, by one purporting to be such officer, of a "main stairway" under the provisions of St. 1907, c. 550, Section 45, as amended by St. 1924, c.

136.

It was not necessary that a writing prepared in the office of the building commissioner of Boston and evidencing a designation made by him personally of a "main stairway" under St. 1907, c. 550, Section 45, as amended by St. 1924, c. 136, be signed by him personally; a facsimile signature was sufficient.

Evidence that an injury, alleged to have been sustained because of a failure to light during the night a "main stairway" so designated under

St. 1907, c.

550, Section 45, as amended by St. 1924, c. 136, occurred to a person, not shown to have abnormal or defective eyesight, at half past eight in the evening of August 29, 1931, when it was "dusk turning to dark" and the injured person could not see, warranted a finding that night had begun at the time of the injury. Absence of a will, when material, may be proved by oral testimony.

Evidence that after a judgment in summary process had been recovered against a tenant, the tenant and his family had remained in occupation by agreement with the landlord, the tenant had made regular payments of rent to the landlord, and thereafter a member of the tenant's family had sustained an injury on the premises, warranted a finding of a new tenancy in effect at the time of such injury.

No error appeared in a refusal to strike out the testimony of a physician who had lost or misplaced his notes, and to whom a letter had been shown for refreshment of his memory, although he stated in cross-examination that his memory was not refreshed thereby, where it did not appear that he had no memory apart from the letter.

A finding of contributory negligence of one injured by falling while descending unlighted stairs at night was not required as a matter of law where it appeared that he guided himself by a rail.

TORT. Writ in the Superior Court dated January 26, 1932. The case was tried before Morton, J.

M. B. Lynch, for the defendants. M. K. Greenberg, for the plaintiff.

LUMMUS, J. This case has been here once before. Sodekson v. Lynch, 298 Mass. 72. At the second trial the plaintiff got a verdict for personal injuries caused by a fall at about half past eight o'clock in the evening, when it was "dusk turning to dark," of August 29, 1931, on a common stairway in the defendants' six-family apartment house in Boston. There was evidence that the fall was due to the failure of the defendants to light the stairway, as the declaration alleged. The plaintiff's father had been a tenant of an apartment on the third floor since November 1930, at which time the automatic device which turned on the lights on the stairway at a certain hour every day was working perfectly. The plaintiff lived with her father. The case is here upon exceptions taken by the defendants.

Statute 1924, c. 136, amending St. 1907, c. 550, Section 45, applicable to the city of Boston, provides as follows: "Public halls and main stairways in all tenement houses, now existing or hereafter erected, three stories or more in height and accommodating four or more families who are served by a common main stairway and hall shall be provided with proper and sufficient lights to be kept lighted during the night. The words `main stairway', as used in this section, shall mean the staircase so designated by the building commissioner." This statute in our opinion required not only provision for lights but also that the lights shall be "kept lighted during the night" -- a question left open in Brodsky v. Fine, 263 Mass. 51 , 54.

A witness named Glover, who was employed in the building department of the city of Boston and was in charge of the records of the department (G. L. [Ter. Ed.] c. 66, Section 6), produced a paper which he testified was an original record kept in the department in the usual course of business. It was dated June 30, 1930, and purported to be a notice from the building commissioner to the defendant Maurice B. Lynch to comply in the apartment house in question with the statute already quoted. It recites that the front stairways of the building are the "main stairway designated by the building commissioner." The signature of the building commissioner was by a facsimile stamp and not his manual signature. The witness testified that it was the practice of the department for an inspector employed in the department to examine the premises and make a written report to the building commissioner who then made the designation, and that three copies of the designation were regularly made out and signed using a facsimile stamp. One of the three copies was kept on file, and is the document produced. The statute does not require service of any notice on the owner, although it is proper to give him notice of a designation, as was the practice.

It sufficiently appeared that the person whose facsimile signature was attached was the building commissioner. It was not necessary to show his election or appointment to that office. It also appeared that the designation was his act, and not that of some subordinate. Sodekson v. Lynch, 298 Mass. 72 . It was not necessary that the designation be made over the signature of the building commissioner. The paper produced, with the testimony of the witness Glover, was evidence of a lawful designation under the statute. Commonwealth v. Segee, 218 Mass. 501 , 504. Commonwealth v. Collins, 257 Mass. 580 , 584.

The statute already quoted required lighting of the main stairway only "during the night." By G. L. (Ter. Ed.) c. 278 Section 10, "If a crime is alleged to have been committed in the night time, night time shall be deemed the time between one hour after sunset on one day and one hour before sunrise on the next day; and the time of sunset and sunrise shall be ascertained according to mean time in the place where the crime was committed." At common law, in criminal cases, night meant "a period when the light of day had so far disappeared, that the face of a person was not...