Ward v. Blouin
| Decision Date | 17 October 1911 |
| Parties | WARD v. BLOUIN. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Joseph P. Carney and Herbert W. Blake, for plaintiff.
David I. Walsh and Thomas L. Walsh, for defendant.
No question has been made as to the apparent variance between the plaintiff's offer of proof and her declaration.
Upon her offer of proof it was her husband and not herself who hired the tenement and became a tenant of the defendant. But this circumstance would not have prevented her from recovering upon a proper declaration if her husband could have recovered for a like injury to himself. Wilcox v Zane, 167 Mass. 302, 45 N.E. 923; Domenicis v Fleisher, 195 Mass. 281, 81 N.E. 191. We therefore consider the question upon its merits, as it has been argued by both parties.
The jury could find that the steps which the defendant was to put up and the box which he supplied for temporary use were, and were to remain, in his possession and control, and were intended for the common use of all the tenants in the house. If so, it was his duty, while the box remained in use as he had put it, to use reasonable care to keep it and the foundation of ashes and cinders upon which it rested in as safe a condition for its intended use as it was or appeared to be when he put it there. Looney v. McLean, 129 Mass. 33, 37 Am. Rep. 295; Andrews v. Williamson, 193 Mass. 92, 78 N.E. 737, 118 Am. St. Rep. 452.
But, as the plaintiff offered to show, it remained there for more than a month; it wobbled and shook upon the cinders under it and became worse as time went on. The defendant's attention was called to its insufficiency, and he gave excuses for doing nothing at that time, but said 'that he would do it in four or five days.' He still did nothing, although thus notified of the state of affairs; and finally, when the plaintiff was using the box as he intended it to be used, it turned over and threw her down, causing the injuries complained of. This would warrant a finding that the accident was due to a negligent failure on his part to keep the temporary step in as safe a condition as when he put it there, and so would entitle the plaintiff to recover if she was in the exercise of due care. The case would come within the rules laid down by our decisions. See for example Leydecker v. Brintnall, 158 Mass. 292, 297, 33 N.E. 399; Robbins v. Atkins, 168 Mass. 45, 46 N.E. 425; Harrinson v. Jelly, 175 Mass. 292, 56 N.E. 283; Lindsay v. Leighton, 150 Mass. 285, 22 N.E. 901, 15 Am. St. Rep. 199; Cummings v. Ayer, 188 Mass. 292, 74 N.E. 336.
That the defendant's duty to put up permanent cement steps rested merely upon his contract does not justify him in a negligent failure to keep the temporary substitute which he had provided from deteriorating and growing more unsafe than it was in the beginning. It was not a part of the construction or permanent arrangement of the premises, as in Quinn v. Perham, 151 Mass. 162, 163, 23 N.E. 735; Moynihan v. Allyn, 162 Mass. 270, 38 N.E. 497; Phelan v. Fitzpatrick, 188 Mass. 237, 74 N.E. 326 108 Am. St. Rep. 469, and other similar cases. The very fact that he allowed this merely temporary arrangement, intended to last only for a few days, to remain in use unattended to for more than a month, though aware of its growing insufficiency, might be found to show negligence. The liability which was enforced against a landlord in Miles v. Janvrin, 196 Mass. 431, 82 N.E. 708, 13 L. R. A. (N. S.) 378, 124 Am. St. Rep. 575, and Id., 200 Mass. 514, 86 N.E. 785, rested upon a contract. But the relation which in that case grew out of the contract between the parties, and by which the defendant was subjected to the burden of looking out for the safe condition of the leased...
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