320 Mass. 309 | Mass. | 1946
In this action of tort the jury returned a verdict for the plaintiff on the first and second
The jury could have found the following facts: In July, 1943, the plaintiff became a tenant at will of the owner of an apartment house numbered 95 Gordon Street in the Allston district of Boston. In September of that year the defendant became the owner of the premises and the plaintiff continued to occupy them as a tenant at will. At the entrance to the premises is a porch or vestibule, and three steps leading to a public sidewalk. This entrance was the
Prior to the accident the plaintiff had on several occasions noticed water coming through that hole on rainy days and she had brought this to the attention of the defendant’s janitor “about three times during the winter.” Water coming from the hole would “come down in a regular stream in front of the door” and then “spread out down over the steps to the sidewalk.”
At 9:45 p.m. on March 21, 1944, the plaintiff while leaving the premises slipped and fell on an accumulation of ice that had formed on the top step and “protruded down over onto the sidewalk.” She slipped at “about the center of the top step.” The ice “formed from the water leaking through and around the hole in the portico.” It had snowed from 10:48 p.m. on March 19 to 1 a.m. on March 21.
The plaintiff was entitled to go to the jury on the second count. To recover the plaintiff was required to prove that her injury was caused by the defendant’s failure to exercise reasonable care to keep the part of the premises remaining in his control in as safe condition as it was in or appeared to be in at the beginning of the tenancy. Silver v. Cushner, 300 Mass. 583, 58A-585. Rogers v. Dudley Realty Corp. 301 Mass. 104, 105. From the facts recited above the jury could have found that the condition of that part of the defendant’s premises became defective subsequent to the time of the letting and that the defendant failed to exercise
In view of the conclusion reached it is not necessary to consider whether, as the plaintiff has argued, the evidence would have warranted a verdict on the ground that the defendant had assumed the duty of keeping the steps free of ice and had failed to perform it. See Nash v. Webber, 204 Mass. 419, 424-425; Erickson v. Buckley, 230 Mass. 467. Compare McNeill v. Home Savings Bank, 313 Mass. 664, 667.
Exceptions overruled.
In the first count the plaintiff alleged that she was injured by reason of an unnatural, accumulation of ice which the defendant had carelessly and negligently suffered to remain on his premises for an unreasonable length of time. In the second count it is alleged that the defendant allowed a certain portion of his premises to remain in such a condition that water could flow in an unnatural manner onto the front porch thereof so that ice formed there for an unreasonable time.