304 Mass. 634 | Mass. | 1939
The plaintiff fell upon the sidewalk of Union Street in Rockland, late in the afternoon of January 29, 1935, in front of a store conducted by the defendant in the first case, which was located upon the street floor of a building owned by the defendant in the second case. The jury returned a verdict for the plaintiff against each defendant, and in accordance with leave reserved the judge, subject to the plaintiff’s exceptions, ordered a verdict to be entered for each defendant.
The jury could find that the plaintiff slipped upon a round, dark patch of ice two feet in width, located in about the middle of a white cement sidewalk directly beneath a sign which had snow upon the top of it; that the rest of the sidewalk was clear, with the exception of a small amount of snow which projected from the gutter a little over the outer edge of the sidewalk; and that water was dripping from this sign at noon on the day of the accident.
In the action against the defendant Stone’s Inc. there was evidence that one Stone had leased two stores, numbered 251 and 253 Union Street, in 1928, and that this lease expired in December, 1933, and was not renewed. The defendant corporation was formed in 1931. Stone was the president, treasurer, director and general manager, his wife was the secretary and a director, and the other director was an accountant. The store at 253 Union Street was vacated in 1933, and thereafter the corporation occupied the store at 251 Union Street for the sale of men’s merchandise. Soon after Stone first occupied the premises he erected an oblong shaped sign which projected over and beyond the middle of the sidewalk. The lower edge of this sign was
A notice addressed to “Stone’s Men’s Shop” was received by Stone on February 27, 1935, which he forwarded to someone almost immediately. Stone testified that he would not have done anything different from what he did if the notice had been addressed to “Stone’s Inc.” rather than to “Stone’s Men’s Shop.” This notice gave the name of the plaintiff and the street and number of her residence in Rockland. It set forth the time and place of the accident, and alleged that it was caused by the defective condition of the premises, which caused water “to be discharged therefrom upon the sidewalk and snow and ice to accumulate and remain upon
The notice upon its face shows that it was intended to be given to the occupant and to the person in control of the Store in front of which the plaintiff fell, and for which she claimed damages. A notice need not give the name of the person who is charged with responsibility for the accident if enough appears from the notice to show that it was intended to be given to a particular person and that it was received by him. Stefani v. Freshman, 232 Mass. 354. Haverty v. Ernst, 232 Mass. 543. The name of a person is the usual but not exclusive means of establishing his identity. O’Brien v. Election Commissioners of Boston, 257 Mass. 332. Brewer v. Hayes, 285 Mass. 144. A corporation may assume a trade name and conduct a business under a name other than the one designated in its charter, and is bound to persons who have dealt with it under such assumed name. Gifford v. Rockett, 121 Mass. 431. William Gilligan Co. v. Casey, 205 Mass. 26, 31. Associates Discount Corp. v. Haynes Garage, Inc., ante, 526. The notice sufficiently described the storekeeper as the one intended to be charged, and upon the evidence it could be found that it was.the storekeeper who actually received the notice, although the notice was addressed to it in its popu
The negligent maintenance over the public way of a sign that would collect snow and in thawing weather would permit water from this snow to escape upon the sidewalk and form an accumulation of ice, which would endanger the safety of travellers upon the way, is an actionable wrong. There was evidence that water was dropping from this sign at noon on the day of the accident, and about five hours before the plaintiff was injured. The negligence of this defendant presented a question of fact which was nronerlv submitted to the jury. Allen v. Salmansohn, 254 Mass. 500. Solomon v. Weissman, 265 Mass. 423. Bullard v. Mattoon, 297 Mass. 182. Crafts v. McCobb, 303 Mass. 172. Harrison v. Poli-New England Theatres, Inc. ante, 123.
We now consider the case against the owner. The sign had been bought, set up and maintained by the tenant. The plaintiff alleged that her injuries were caused by the negligence of the owner, and the order that a verdict be entered for the owner must be presumed to have been made in view of the pleadings that were then before the court. R. J. Todd Co. v. Bradstreet Co. 253 Mass. 138. Ferris v. Boston & Maine Railroad, 291 Mass. 529. The plaintiff was required to prove this material allegation. The sign was designed to be used in conjunction with the store conducted by the tenant and for its benefit in connection with its business. The occupant, and not the landlord, is ordinarily liable for injuries sustained by a pedestrian upon the highway that were caused by a defect in that portion of the premises included within the demise to the tenant, where the premises did not contain a nuisance at the time they were let or where the contemplated use by the tenant will not result in the creation of a nuisance. Clifford v.
There is no evidence that the sign was in the control of the landlord. The A. W. Perry Realty Company was not shown to have made any repairs upon it or to have exercised any supervision over it. The fact that it was entirely, or almost entirely, located above the store premises is not enough to fasten liability upon this defendant. The' building was a two-story structure with stores upon the street floor and offices upon the second floor. There is nothing in the record to indicate that the portion of the exterior wall to which the sign was attached was in the control of the owner rather than in that of the tenants upon the second floor. The terms of the letting to these tenants are not disclosed. Ordinarily, the control of such portion of this wall would be in the tenants of the second floor, who were occupying the premises adjacent to this wall, in the absence of any evidence to the contrary. Pevey v. Skinner, 116 Mass. 129. Lowell v. Strahan, 145 Mass. 1. Whitehouse v. Aiken, 190 Mass. 468. Conahan v. Fisher, 233 Mass. 234. Levin v. Rose, 302 Mass. 378. Shepard v. Worcester County Institution for Savings, ante, 220.
A landlord is not liable in tort for negligence for an injury due to the defective condition of his premises, if the plaintiff fails to show that the landlord had supervision and control over that portion of the premises where the defect was located. Anderson v. Kopelman, 279 Mass. 140. Murphy v. Alpine Press Inc. 291 Mass. 239. Hannon v. Schwartz, ante, 468.
The case is distinguishable from Woodman v. Shepard, 238 Mass. 196, where a -portion of the sign was attached to a part of the premises that were under the immediate control of the landlord.
The plaintiff’s exceptions in the case against Stone’s Inc. are sustained and judgment is to be entered in accordance with the verdict returned by the jury; the plaintiff’s exceptions in the case against A. W. Perry Realty Company are overruled.
So ordered.
