Sullivan v. Hamacher

• Decision Date: 14 May 1959
• Citation: 158 N.E.2d 301,339 Mass. 190
• Parties: Gloria B. SULLIVAN, Administratrix, v. Harry A. HAMACHER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 301

158 N.E.2d 301

339 Mass. 190

Gloria B. SULLIVAN, Administratrix, v. Harry A. HAMACHER.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued Oct. 8, 1959.

Decided May 14, 1959.

Bertram A. Sugarman, Boston (Edward J. Barshak, Boston, with him), for defendant.

Thomas E. Cargill, Jr., Boston, for plaintiff.

Before WILKINS, C. J., and RONAN, SPALDING, COUNIHAN and CUTTER, JJ.

COUNIHAN, Justice.

This is an action of tort to recover damages for the death of the plaintiff's intestate, Gertrude V. Corbett, allegedly caused by a fall on February 7, 1954, due to the failure of the defendant to provide suitable lighting in a hallway on the second floor of a building owned by the defendant on Florence Street in Malden. ¹ The action was tried before a jury who returned a verdict for the plaintiff. It comes here upon an exception of the defendant to the denial of his motion for a directed verdict. There was no error.

There was evidence that the deceased, a woman about sixty-five years old, was a tenant on the second floor of this building. She lived alone. There were three other tenements on that floor. At the time the tenancy of the deceased began the only source of light in the hallways on that floor was an electric light fixture in the ceiling to the left of an extension of the main hallway. Electricity for this fixture was on the defendant's meter. This fixture was in the control of the defendant and it was lighted twenty-four hours a day until a period beginning about three months before the day of the accident when the bulb burned out. There were no windows in either of the hallways so that it was dark there during the daytime and pitch black after darkness set in. The bulb had not been replaced at the time of the deceased's fall despite many complaints by the tenants to the defendant and his agent.

The last person to see the deceased alive was an occupant of an adjoining tenement. At about 6:30 P.M. on February 7, 1954, she heard the noise of someone approaching, and upon opening the door she saw the deceased at the top of the front stairway. After an exchange of greetings the deceased said, 'I've got to go to the bathroom. My goodness, but it's dark in here. When are they ever going to do anything about the light?' The neighbor heard the deceased walk to her own door and insert her key.

At about 7:30 A.M. on Monday, February 8, the body of the deceased was found at the bottom of the rear stairway which led from the hallway nearly opposite the front stairway. The rear stairway was an old fashioned one about three and one half feet wide and very steep. It led to the back yard where there were rubbish barrels and the tenants used it to go down and deposit rubbish in those barrels.

When the body was found the deceased was dead apparently as the result of a fractured skull. The body was fully clothed except for shoes. Her outer garment was a dress of dark blue material and it was not a house dress. There was a tear about two inches in length in her skirt at the level of her hip. Pieces of cloth of the same material were found caught on one of the screws which fastened a barrier, hereinafter described, to the top of the stairs. At the level of the hallway, there was a wooden arm which served as a barrier. The arm was screwed into a swivel on the left side of the top of the stairway as one looked at it from the door to the deceased's tenement. This arm could be raised or lowered. When it was down it rested in a slot on the right side of the top of the stairs and formed a barrier to the use of the stairs. When using this rear stairway the tenants lifted the arm to an upright position and when they finished they would replace it down into the slot.

In the brief of the defendant there is a drawing of the hallway and its extension in which the bathroom of the deceased was located. This drawing corresponds with the description of the area as it appears in the record and the photographs of it which were before us. It shows the entrance to the tenement of the deceased to be located nearly opposite the top of the rear stairway and about six feet diagonally away from it. About six inches from the left side of the top of the stairs an extension of the main hallway runs off it at a right angle. Thus in going to or returning from the bathroom the deceased would have to pass the top of the rear stairs.

A police officer who arrived on the scene at about 7:45 A.M. observed the condition of the tenement of the deceased. The lights in it were on and the shades were drawn. Her shoes had been 'kicked off'; two unopened Sunday newspapers were there; and her outer coat, hat and purse had been 'just dropped' on a piece of furniture. The gas stove in the kitchen was burning and food containers were on the kitchen table.

In considering the denial of the motion of the defendant for a directed verdict, we need consider only evidence favorable to the plaintiff. Donnelly v. Larkin, 327 Mass. 287, 289, 98 N.E.2d 280, 25 A.L.R.2d 487. We have also said, "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 * * * to exercise reasonable care to keep the part of the premises remaining in the control of the landlord in the...