Wilcox v. Zane

• Court: Supreme Judicial Court of Massachusetts
• Writing for the Court: KNOWLTON, J.
• Citation: Wilcox v. Zane, 45 N. E. 923, 167 Mass. 302 (Mass. 1897)
• Decision Date: 08 January 1897
• Parties: WILCOX v. ZANE.

167 Mass. 302

45 N.E. 923

WILCOX v. ZANE.

Supreme Judicial Court of Massachusetts, Suffolk.

January 8, 1897

COUNSEL

E.O. Shepard, for plaintiff.

Elden Wait & Whitman, for defendant.

OPINION

KNOWLTON J.

The evidence tended to show that the roof where the plaintiff was injured was retained in the possession of the defendant as a place to be used in common by his tenants in the building for hanging clothes to dry, and for other uses to which the yard of a dwelling house is commonly put. It was, therefore, his duty to keep it in a reasonably safe condition for the uses for which it was intended. Looney v. McLean, 129 Mass. 33; Marwedel v. Cook, 154 Mass. 235, 28 N.E 140; Watkins v. Goodall, 138 Mass. 533; Miller v. Hancock (1893) 2 Q.B. 177. The plaintiff was a boarder with Mrs. Pray, one of the defendant's tenants who, by contract with the defendant's agent, had a right to use the roof in common with others. At Mrs. Pray's request, she went upon the roof to do work for Mrs. Pray which she had a right to do there under her contract with the defendant. Although she was working gratuitously, she was, in a sense, a servant or agent of Mrs. Pray, and she went upon the roof in Mrs. Pray's right. Barstow v. Railroad Co., 143 Mass. 535, 536, 10 N.E. 255. The use which the tenants might make of the roof was not limited to working there in person. The implied invitation growing out of the defendant's contract extended to the agents and servants of the tenants who went upon the roof to do work which the tenants were authorized to do there. The defendant had an interest in the use to which the roof was being put, for he received pay from his tenants for the privilege of so using it. Upon the evidence in this case the defendant owed the plaintiff the same duty to have the roof reasonably safe at the time of the accident that he owed to Mrs. Pray. Plummer v. Dill, 156 Mass. 426, 31 N.E. 128; Hart v. Cole, 156 Mass. 475, 31 N.E. 644. There was evidence from which the jury might have found that he failed in the performance of this duty. It is clear that it was not necessary to have a very strong floor, for, if one broke through it, his foot could not descend more than about four inches before it would be stopped by the roof below. As the danger of injury was small if a board broke, a greater risk of breaking was allowable than if a break would be likely to be attended by serious consequences. But there was...