Withington v. Rome

• Decision Date: 08 January 1927
• Citation: Withington v. Rome, 258 Mass. 188, 154 N.E. 764 (Mass. 1927)
• Parties: WITHINGTON v. ROME et al.
• Court: Supreme Judicial Court of Massachusetts

258 Mass. 188

154 N.E. 764

WITHINGTON

v.ROME et al.

Supreme Judicial Court of Massachusetts, Worcester.

Jan. 8, 1927.

Exceptions from Superior Court, Worcester County; Elias B. Bishop, Judge.

Action of tort by Wesley W. Withington, p. p. a., against Abraham I. Rome and another, to recover for personal injuries. Verdict was directed for defendants, and plaintiff excepts. Exceptions overruled.C. T. Flynn, of Fitchburg, for plaintiff.

C. C. Milton, of Worcester, and E. W. Baker, of Fitchburg, for defendants.

BRALEY, J.

[1][2] The plaintiff, a child 18 months old, living with his parents in a tenement owned by the defendants and rented by his mother, Mrs. Grace Withington, suffered physical injuries on June 7, 1923, which are alleged to have been caused by the defendants' negligence. The plaintiff, being too young to care for himself, was in the custody of his mother whose evidence tended to show that she had gone to the roof to take in some clothes, leaving the plaintiff in the living room where there was a closed window, which the jury could find was more or less broken and decayed. Upon her immediate return, she discovered his absence, that the window was broken, and that the plaintiff was lying on the ground below. The question of her due care was for the jury. Grant v. Fitchburg, 160 Mass. 16, 35 N. E. 84,39 Am. St. Rep. 449. There was testimony warranting the jury in finding that when Mrs. Withington intended to rent the tenement and called on the defendants' agent, on November 3, 1922, it was being repaired:

And ‘he told her everything was all right, repairs were under way,’ and ‘The tenement was being fixed up in first-class shape. It was all right to move into.’

Relying on these representations, she paid one month's rent and received the key. The next day upon moving in she found the conditions were not as represented, and at once informed Abraham I. Rome, hereinafter referred to as the defendant, ‘that the tenement was not finished; it was not fixed up as she hired it,’ and that ‘she would not stay.’ A further finding also was warranted that she never agreed to rent the tenement as she found it on inspection. It was under these conditions that the defendant, who had the management of the property and was authorized to act for his brother, the defendant Hyman A. Rome, said ‘that he would finish right up’ and ‘make all repairs that were not finished,’ which could be found to include the window in question. The acceptance of this proposition by the tenant, who remained in...