Trainor v. Keane

• Decision Date: 29 November 1939
• Parties: TRAINOR v. KEANE et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

304 Mass. 466

23 N.E.2d 1015

TRAINOR

v.KEANE et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Nov. 29, 1939.

Exceptions from Superior Court, Suffolk County; G. F. Leary, Judge.

Action by Katherine V. Trainor against Annie M. Keane and another for injuries sustained by plaintiff as the result of the breaking of a piazza railing which was part of the tenement plaintiff occupied with her husband and family. The jury returned a verdict for plaintiff, but the trial judge, in accordance with leave reserved, granted, subject to plaintiff's exception, motion of the defendants to enter verdict for them, and plaintiff brings exceptions.

Exceptions overruled.H. Alpern, of Boston, and L. L. Lobel, of Allston, for plaintiff.

J. F. McDonald and W. B. Sullivan, Jr., both of Boston, for defendants.

RONAN, Justice.

The plaintiff, wife of the tenant at will of the defendants, was injured by the breaking of a piazza railing which was a part of the tenement she occupied with her husband and their family. The jury returned a verdict for the plaintiff, but the trial judge, in accordance with leave reserved, granted, subject to the plaintiff's exception, the motion of the defendants to enter a verdict for them.

The plaintiff alleged that the defendants agreed at the time of the letting to maintain the tenement ‘in a safe and sound condition for the tenant's use,’ and contends that there was evidence in support of this allegation. She testified that one of the defendants with whom she made the arrangements to hire the tenement stated that she would from time to time ‘come up and see whatever there was to be done.’ It is on this testimony alone that the plaintiff must rely because the rest of the evidence, including the conduct of the parties after the tenancy began, tended to show that the only obligation in reference to repairs that the defendants assumed was to repair upon notice. The question is whether this particular testimony of the plaintiff is sufficient to show that the defendants agreed to keep the tenement in a safe condition.

The accident was caused by a defect in a part of the tenement, and the liability of the landlords to the tenant and members of the tenant's family must be determined by the contract of letting. The plaintiff, in order to recover, was required to prove that the landlords, upon their own responsibility and without notice from the tenant as to defects, had assumed the active duty of keeping and maintaining the tenement in good repair and in a safe condition for use and occupancy by the tenant and members of his household. Miles v. Janvrin, 196 Mass. 431, 82 N.E. 708, 13 L.R.A.,N.S., 378, 124 Am.St.Rep. 575;Id., 200 Mass. 514, 86 N.E. 785;Crowe v. Bixby, 237 Mass. 249, 129 N.E. 433.

If the promise to go upon the premises and to see what was to be done includes anything...