Cerricola v. Darena

266 Mass. 267 | Mass. | 1929

Wait, J.

The plaintiff, minor child of a tenant of the defendants, living with his parents in premises in Boston, was injured by falling through a glass skylight covering a light shaft which extended above the roof of the building. The light shaft stood close to the edge of the roof and near a penthouse covering a stairway leading to the roof. Its covering, of which the skylight was part, extended from the wall of the penthouse on an incline and overhung the side of the shaft. Where it rested against the penthouse it was four feet, eight inches high, and at its lowest point three feet, six inches high above the roof level. It was five feet, two inches wide, and the frame and glass of the skylight was three feet, nine inches wide. The tenants in the building were expected to use the roof in common for the purposes incidental to the use of their tenements. At the time of the letting to the plaintiff’s father, the roof was floored with boards, and was surrounded by a fence which followed the edge of the roof, passed around the light shaft, and ended against the penthouse wall between the light shaft and the jamb of the penthouse door. The skylight was then in good condition. During the occupancy, the original fence was replaced by another which followed the edge of the roof, but did not enclose the light shaft. The glass of the skylight remained strong; but the putty and lead became weakened. The plaintiff's father reported this condition to one or both defendants, and was told it would be taken care of. Sometime later and before any repair had been made, the plaintiff, then six or seven years of age, climbed upon the skylight and sat upon it. The glass gave way, and plaintiff fell to the bottom of the shaft.

The law is settled that a landlord is bound to keep stairways, roofs and areas intended to be used in common by his tenants in reasonably safe condition for the use contemplated. He is not bound to keep them in better repair than they purported to be in at the time of the letting. Andrews v. Williamson, 193 Mass. 92, 94. Lindsey v. Leighton, 150 Mass. 285. Quinn v. Perham, 151 Mass. 162.

He is not bound to keep them safe for uses to which they were not intended to be put. Dalin v. Worcester Consolidated Street Railway, 188 Mass. 344. Eisenhauer v. Ceppi, 238 Mass. 458. Carroll v. Intercolonial Club of Boston, 243 Mass. 380. Landers v. Brooks, 258 Mass. 1. See also Noonan v. O’Hearn, 216 Mass. 583.

It is manifest that the air shaft above the roof was not intended for use by the tenants and we deem it clear that the removal of the fence was not an invitation to climb upon the skylight or to use it as a seat. The original fencing, and the height and structure of the shaft, exclude such invitation. The case falls within the principle of Dalin v. Worcester Consolidated Street Railway, supra, Eisenhauer v. Ceppi, supra, and Landers v. Brooks, supra.

Judgment for defendants.