193 Mass. 92 | Mass. | 1906
These two actions were tried together. At the trial it was admitted that the defendant was the owner of the premises where the accident occurred, and that at the time of the accident the relation of landlord and tenant existed between the defendant and the plaintiff Russell E. Andrews. The evidence was undisputed that the plaintiffs began to occupy the premises in February, 1902, and had continued such occupation up to the time of the accident which occurred in June, 1903; that the building “ was a double tenement house with an upper and a lower flat,” the plaintiffs occupying the lower flat and one Davis occupying the upper flat; that there was a front entrance to the house and a side entrance; that at the side entrance there was a flight of five steps used in common by both tenants; and that these steps were out of doors, being the means of entrance to the side door. The plaintiff Margaret, the wife of the plaintiff Russell, was injured by the breaking of one of these steps as she was passing over it.
At the trial it seems to have been assumed that the steps were not leased to either tenant, but were retained in the control of the defendant, and the arguments before us have proceeded upon the same assumption. The question therefore in substance may be stated thus: What is the nature of the duty owed by a landlord to a tenant as to the care and repair of a stairway over which the tenants have only a right of way in common, and which is kept within the control of the landlord?
With this view of the law we proceed to the examination of the particular features of this case. The first request that there was no sufficient evidence to warrant a verdict for the plaintiff was rightly refused. Upon the evidence the jury could have found that the steps were apparently sound at the time of the letting, that the plaintiff was in the exercise of due care, and
The record states that the defendant also excepted to “ such part of the charge as states that the landlord is liable if she ought to have known of the defect.” In considering this exception we have been somewhat embarrassed by the way in which the case comes to us. The whole charge covering four and a half printed pages is before us, and neither in the record nor in the brief of the defendant is there any specification of the precise words upon which the exception is based. The defendant however contends at the end of the brief that “ the court, in its charge to the jury and in its refusal to give the instructions requested, substantially made the defendant landlord an insurer of her tenants against injury arising in any manner whatsoever from defects in common passageways, irrespective of their condition at the time of the letting.”
We have examined the charge and do not find this criticism well founded. Taking the charge as a whole and the various sentences in their proper setting, and applying them to the particular facts of this case, the fair construction of it upon this point is that, if the defect of which the plaintiffs complain was obvious at the time of the letting, then the defendant was not liable ; but that if the steps appeared strong and safe at the time of the letting then the defendant was bound to use due care to keep them in the condition in which they thus appeared to be. As thus construed the charge was apt and correct.
Exceptions overruled.