Thе evidence in this action of tort included the following: The defendant Bereault since 1952 was the operator of a garage in Holbrook. The defendant Sim *504 mons was an employee of Bereault. On November 19,1959, an automobile owned by the defendant Mаrion Griffith was brought to the garage by her husband, Raymond Griffith, to be greased. Simmons placed the Griffith car, which weighed about three tons, on a hydraulic lift and raised the lift to its maximum height, five feet. Simmons then placed wooden blocks ahead of and behind the right rear wheеl, “pulled the emergency brake up to the maximum,” and “put the gear in reverse.” After draining the oil, he went around to the front of the car and, while he was wiping the grease fittings, the car rolled “straight back and off the ramp” and struck the plaintiff, who was a business invitee of Bereault. The car “went off the ramp at the rear of the rails where the flaps were”; it went right over the flaps.
Bereault testified that there are four possible means of keeping a car on the lift, namely “putting it in gear, using the handbrake, using the blocks and having the flaps.”
The safest course was to use all four of these devices.
The lift on which the car was placed was a ‘ ‘ single post hydraulic hoist with two rails.” When a car is to be hoisted it is driven onto the rails and a hydraulic hoist in the center pushes the rails up. The rails “have flaps in front and back and as the hoist goеs up these flaps close for the purpose of keeping the car from rolling off the rails.” There were times before the accident when the flaps “did not raise all the way up” and if that occurred “they wouldn’t be so effective to stop a car from rolling.” When raised completely, the flaps “went up to about a 45 degree angle.” After the accident the flaps “were sprung down [and] bent”; they would come part way down but would not lock.
The garage was owned by the defendant Gulf Oil Corporatiоn (Gulf) and was leased to Bereault. The lift on which the Griffith car was placed was manufactured by the Wayne Pump Company (Wayne) and was sold to Gulf in 1950. Bereault testified that the “lift was not level, that it is possible it was slanted down to the rear as the rails extended baсkward”; that he thought he had noticed this before the *505 accident; and that it “hasn’t been changed since [it] was installed by . . . Gulf.”
Evidence in addition to the foregoing will be set forth hereinafter as occasion requires.
As a result of the accident described above the plaintiff brought this action of tort in five counts. Counts 1 and 2 against Bereault and Simmons, respectively, were submitted to the jury and verdicts were returned for the plaintiff. No exceptions are before us touching these counts. With respect to counts 3, 4, and 5 agаinst Gulf, Wayne, and Griffith, respectively, a verdict was directed for each defendant. The case comes here on the plaintiff’s exceptions to the direction of these verdicts and to certain rulings on evidence.
1. In the case against Mrs. Griffith, the following additional evidence is relevant. The brakes of the automobile needed adjustment and she knew it. Neither Mrs. Griffith nor her husband, who took the car to the garage, told Simmons or Bereault that an adjustment of the brakes was necessary. An adjustment of the brakes nоt only would affect the operation of the foot brake, but also the hand brake.
It is the plaintiff’s contention that Mrs. Griffith is liable because of the defective condition of the automobile and because of the failure to warn Simmons and Bereault thаt the brakes needed adjustment. Under our decisions “a person who owns or controls an instrumentality which he knows, or with reasonable care should know, is dangerous in its nature or is in a dangerous condition and who disposes of it in a manner that he foresees, оr in the exercise of reasonable care ought to foresee, will probably carry that thing into contact with some person, known or unknown, who will be ignorant of the danger, owes a legal duty to every such person to use reasonable care to prevent injury to him.”
Mann
v.
Cook,
In the circumstances, Mrs. Griffith was not under a duty to give notice that the brakes needed adjustment. Generally there is no duty to warn of danger, unless the person on whom that duty rests has some reason to suppose a warning is needed.
Guinan
v.
Famous Players-Lasky Corp.
2. The count against Wayne is based upon the alleged negligent manufacture of the lift. See
Carter
v.
Yardley & Co. Ltd.
Although
Carter
v.
Yardley & Co. Ltd.
3. In the case against the defendant Gulf, there was this further evidence. Gulf has servicemen who visit stations to repair equipment when complaints have been made. On December 1, 1959, approximately two weeks after the accident one of the employees did some work on the lift. Gulf also has salesmen who “make reports of conditions they see ... if anything is wrong at a location.” At the time of the accident, Gulf owned the premises and the equipment within the garage, including the lift. By a lease executed prior to the accident Bereault had become the lessee of the premises and equipment. The lease provided that Bereault “shall keep said premises, buildings, equipment, fixtures ... in good cоndition and repair.” Control by Gulf was expressly disclaimed by a clause which read, “None of the provisions of this lease shall be construed as reserving to *508 the Lessor any right to exercise control over the service station business and operations оf the Lessee conducted upon the leased premises, or to direct in any manner how the Lessee shall conduct his business.”
The plaintiff’s rights against Gulf are limited by the extent of the duty which Gulf owed Bereault. A landlord owes the same duty to the business invitee of a tenant which he owes to the tenant himself, but no greater duty.
Telless
v.
Gardiner,
This is not a case where the landlord has retainеd control of a portion of the premises. In the case at bar, the tenant Bereault was in control of the lift. Thus, in order to recover, the plaintiff must establish that Gulf owed Bereault, and therefore the plaintiff, a duty of some sort to repair.
Accоrding to the evidence and an offer of proof, Gulf had from time to time made repairs. But, there was no indication that they had been done other than gratuitously. In such a case, the landlord’s duty is very limited. He is liable only for gross negligence, and then “only to the tеnant or person with whom he makes the gratuitous undertaking.”
Bergeron
v.
Forest,
By the express terms of the lease, Bereault, and not Gulf, was under a duty to make repairs. To be sure, there was a provision to the effect that ‘ ‘ The Lessee will not paint or repaint the buildings or any of the structures, equipmént or fixtures located.thereon, make no alterations, additions, or changes thereon or thereto, without first obtaining written consent of the Lessor.” But this language did not shift the obligation to make repairs from Bereault to Gulf. Gulf, in the absence of a contractual duty to repair, would
*509
not have been liable to the plaintiff for negligence in making repairs.
Feeley
v.
Doyle,
The only other theory upon which the plaintiff might recover involves proving that the lift was in a dangerous condition at the time of the demise of the premises. As a general rule, there is no implied covenant of fitness.
Bolieau
v.
Traiser,
4. An exception was taken to the exclusion of a question asked Bereault as to what he saw the employees of Gulf do in connection with the hydraulic lift before the accident. An offer of proof indicated that Bereault would testify that he saw them service, maintain and repair it. But this offer of proof, together with the evidence introduced, still would not have established that Gulf controlled a portion of the premises, namely, the lift. The offer did not indicate that Gulf covenanted to make repairs or that Gulf failed to warn of a hidden defect at the time of the letting. There was, therefore, no basis for recovery and the exclusion of the question wаs not prejudicial.
*510 5. On direct examination the plaintiff’s counsel asked the husband of the defendant Griffith the following question, “And they [the brakes] needed adjustment, as you knew, to hold the car in place?” There was an objection and it was sustained. The question was рalpably leading and was properly excluded.
6. In the cross-examination of the district manager of Wayne he had testified that he was familiar with the commercial standards developed by manufacturers. He was then asked whether ‘
‘
one of those standards was that automatic chocks shall be provided for roll-on runways at the ends of the rails of the lift and shall operate to lock in the first twelve inches of ascent and not unlock automatically before the last twelve inches of descent.” Thе question was excluded subject to the plaintiff’s exception. There was no error. “Our cases have long held that evidence of a general practice or of what is customarily done by others may, in the judge’s discretion, be received on the issue of negligence.”
Kushner
v.
Dravo Corp.
This opinion as to points 3 and 4 is that of a majority of the court.
Exceptions overruled.