Wixon v. Bruce

• Decision Date: 06 January 1905
• Citation: Wixon v. Bruce, 187 Mass. 232, 72 N.E. 978 (Mass. 1905)
• Parties: WIXON v. BRUCE et al. (two cases).
• Court: Supreme Judicial Court of Massachusetts Supreme Court

187 Mass. 232

72 N.E. 978

WIXON v. BRUCE et al.(two cases).

Supreme Judicial Court of Massachusetts, Suffolk.

January 6, 1905

COUNSEL

Edgar P. Benjamin, for plaintiff.

Dickson & Knowles and Frank Paul, for defendants.

OPINION

LORING J.

These were two actions of tort for injuries suffered by the plaintiff in the first action, who was the wife of the plaintiff in the second action, from falling upon an accumulation of ice on a sidewalk in front of a building owned by the defendant Bruce, caused by the discharge of water from a conductor which took the water from the roof of that building and the building adjoining it.At the time of the accident the ground floor and basement of Bruce's building, with the exception of a hoistway and the stairs to the upper stories, were in the possession of the defendants Crowley & McCarthy as tenants for a term of years, and the upper stories, together with the hoistway and stairs, were in the possession of another tenant for a term of years.Each lease contained this covenant on the part of the lessee, to wit: 'That they will * * * save the said lessor and his legal representatives harmless from * * * any claim or damage arising from neglect in not removing snow and ice from the roof of the building, or from the sidewalks bordering on the permises so leased.'The lease to Crowley & McCarthy was dated August 1, 1901, and the other lease was dated May 1, 1900.The premises let to these two sets of tenants comprised the entire building.

The case was heard by a judge without a jury, who found that 'the plaintiffAmanda Wixon, while traveling on said Blackstone street, and while in the exercise of due care fell upon the sidewalk in front of the store occupied by the defendants Crowley & McCarthy; and her fall was caused by an accumulation of ice on said sidewalk, due to the collection and freezing of water flowing from said conductor or spout.'The defendants Crowley & McCarthy asked the judge to rule that, on all the evidence, they were not liable.This was refused.They also asked for these two rulings, which were refused as immaterial, to wit: '(7) If the building No. 113 Blackstone street was not occupied by the defendants Crowley & McCarthy alone, but was leased to and occupied by other tenants beside Crowley & McCarthy, then, in respect to a conductor running from the roof of the building to the ground to conduct the water from the roof of the building the owner of the building, and not the defendants Crowley & McCarthy, was in control of and the occupant of the conductor, as regards the responsibility for its existence and for its condition, and the obligation to keep it in repair.(8) If the building, No. 113 Blackstone street was leased to more than one tenant, so that the defendants Crowley & McCarthy did not occupy the entire building--if Crowley & McCarthy had a lease of and occupied only the lower part of the building and the upper part was occupied by another tenant--then Crowley & McCarthy had no control over or responsibility for the existence or condition of, the conductor running from the roof of the building to the sidewalk, and they had no duty in regard to it.'The court made the following ruling, namely: 'That the defendants Crowley & McCarthy should not be held liable in this action by reason merely of any of their covenants contained in the said lease executed by and between them and the defendant Bruce, trustee; that the said lease was evidence on the question of their posession and occupancy and control of the premises therein and thereby demised, and of the appurtenances by law attached thereto, including...