320 Mass. 620 | Mass. | 1947
In this action of tort, brought by the plaintiff against his landlord to recover for personal injuries, there was evidence that while the plaintiff was descending a common stairway on a very cold morning in December, 1942, for the purpose of attending to the boiler which apparently heated his apartment and in order to secure a supply of fuel oil for his kitchen range, “something caught his
There was no error in the refusal of the judge to direct a verdict for the defendant upon the ground either that the plaintiff had voluntarily assumed the risk or that he was contributorily negligent. The jury could find that on account of the severity of the weather it was necessary for the plaintiff to go to the cellar in order to secure more heat for his apartment, and that so far as appears there was no way, other than the stairway, to reach the cellar. Furthermore, the location of the loose edge of the riser might have been found to be such that one would not have reasonably anticipated that it might catch his foot and cause him to fall. In any event, it could not be ruled that the defendant had sustained the burden of proving that the plaintiff had voluntarily assumed the risk of injury. Powers v. Boston, 154 Mass. 60. Pomeroy v. Westfield, 154 Mass. 462. Fitzgerald v. Connecticut River Paper Co. 155 Mass. 155. Dunning v. New York Central Railroad, 255 Mass. 211. Lucas v. Byrne, 258 Mass. 365. Silver v. Cushner, 300 Mass. 583. Chapman v. Standen, 302 Mass. 4. Contributory negligence of the plaintiff was a question of fact which was properly submitted
The subject of the third request was adequately covered by the instructions. The seventh request amounted to nothing more than a selection of a portion of the evidence favorable to the defendant, without any mention of other evidence adverse to the defendant. The eighth request, which included the proposition that a landlord' had a right to rely upon the tenant to inform him of any defective condition, was an incorrect statement of law, and the defendant’s exception to the refusal to give it cannot be sustained. The ninth request was properly refused because mere knowledge of a defect is not the equivalent of voluntary assumption of the risk. The tenth request, which in substance was that, if it was negligent to maintain the stairway in a defective condition, then it must have been negligent for the plaintiff to use the stairway, is unsound. A similar request was held to have been properly denied in Barttro v. Watertown Square Theatre, Inc. 309 Mass. 223, 224, 225. It was pointed out in Wilcox v. Zane, 167 Mass. 302, 307, and McCarthy v. Goodrum, 292 Mass. 567, 568, that the landlord and not the tenant has a duty with reference to the maintenance of those parts of the premises that remain in the control of the landlord.
Exceptions overruled.