Calabresa v. Lynch

271 Mass. 58 | Mass. | 1930

Field, J.

In this action of tort for personal injuries, alleged to have resulted from a defect in the iron frame of a “Hyatt Light” forming part of the sidewalk in front of a store occupied by the defendant, the defendant’s motion for a directed verdict was denied, there was a verdict for the plaintiff and the defendant excepted.

A verdict for the defendant should have been directed since a finding that she was responsible for the alleged defect was not warranted by the evidence.

There was evidence that the defendant was the lessee under a written lease and the occupier of the “store” numbered 171 Hanover Street in the city of Boston which was one of three on that street in a five-story building leased to the defendant’s lessor, and that she was required by her lease to make inside and outside repairs “on the premises” and agreed therein that the lessor should not be liable “for any claim or damage arising from the neglect in not removing snow and ice from the roof of the building or from the sidewalks bordering upon the premises.” There was evidence that the “Hyatt Light” space was a part of the sidewalk and extended in front of the entire building for the width of from two and one half to three feet over a part of the cellar; that one step led from the sidewalk into the store and there was no other entrance thereto; that “no other tenant had any access to "the store . . . which is occupied exclusively by the defendant”; that there was no entrance to the cellar from the defendant’s store, and that the cellar, except for a small portion in the rear, partitioned off and used by another tenant, was “a great big open space” where “different tenants kept different things.” There was testimony that the defendant “had the use of the cellar” and that boxes, marked with her name, were seen in the cellar, but no testimony as to how they got there or that the defendant or her employees ever were seen there. There was testimony also that at different times she swept the sidewalk in front of her store and cleaned it of snow and ice. It was agreed by the parties at the trial that the defendant was covered by liability insurance against loss arising from claims, among others, by “persons not employed by the assured while within or upon the premises ... or upon the sidewalk, ways or premises adjacent thereto,” with exceptions not here material.

The defendant was not responsible to the plaintiff for the defect unless she had control of the iron frame and consequently, as to the public, was under the duty of keeping it in repair. Cunningham v. Cambridge Savings Bank, 138 Mass. 480, 481. Grasselli Dyestuff Corp. v. John Campbell & Co. 259 Mass. 103, 108.. Kelley v. Rubin, 259 Mass. 379. It could not have been found that she had such control. Her lease, unlike that in Boston v. Gray, 144 Mass. 53, and that in Kelley v. Rubin, supra, did not in terms cover anything but the “store,” and the evidence did not warrant a finding that the cellar was a part of the “store.” See Raynes v. Stevens, 219 Mass. 556, 557. (The “store” was not the entire structure as in Hooper v. Farnsworth, 128 Mass. 487.) Whatever right, if any, the defendant had to occupy the cellar, it was not shown that it was exclusive so as to give her control. See Shipley v. Fifty Associates, 106 Mass. 194, 200; Larue v. Farren Hotel Co. 116 Mass. 67; Flanagan v. Welch, 220 Mass. 186, 191, 193. It could have been found that the iron frame was a part of the cellar (Boston v. Gray, supra), but not that it was a part of the “store.” The defendant’s agreement to make outside repairs did not apply to premises not covered by the lease, and her agreement as to the removal of snow and ice was not broad enough to give her control, in other respects, of the iron frame of the “Hyatt Light,” under the doctrine of Wixon v. Bruce, 187 Mass. 232. Since the defendant’s liability insurance against loss arising from claims by persons on the sidewalk had ample scope for operation apart from liability for defects in the iron frame, the case is distinguishable from Perkins v. Rice, 187 Mass. 28, in that the existence of such insurance was not evidence, as an admission by her or otherwise, that she had control of the iron frame. See Enman v. Trustees of Boston University, 270 Mass. 299. Nor was the fact that she swept the sidewalk and cleaned it of snow and ice evidence of such control. No question arises upon the record as to the defendant’s liability to an invited person entering or leaving her “store.”

It follows that the exceptions must be sustained and judgment for the defendant entered under G. L. c. 231, § 122.

So ordered.