324 Mass. 251 | Mass. | 1949
At the close of the evidence in this action of tort the judge directed a verdict for the defendant subject to the plaintiff’s exception, and the correctness of this action is the only question for decision.
Facts which could have been found are these. On or about September 24, 1945, the plaintiff moved into a seven room house owned by the defendant, pursuant to a prior oral agreement fixing the rent at $30 a month. As part of the agreement the defendant promised to make certain repairs which included the installation of new water pipes in the kitchen. There was a delay in procuring a plumber and the plaintiff moved in before the plumbing job had begun. In January, 1946, the defendant after obtaining an estimate from one Sullivan, a master plumber, engaged him to do the work. Late in the afternoon of January 17,
On the following morning the plaintiff, after tending to some duties in the kitchen, walked toward the back door for the purpose of unlocking it, and as she did so she tripped over the pipes which were a “little over a foot from the back door.” “The rolling of the pipes pitched . . . [her] and . . . [she] landed in the corner.” “It was light [and] she did not need electric lights on.” She “just walked over there and . . . didn’t think about the pipes.” She could have seen them if she had looked down, but she had forgotten they were there. As she walked toward the door she was facing the pipes.
Despite the testimony of the defendant that the payment of rent was not to commence until the repairs had been completed, there was evidence which would have warranted a finding that the plaintiff’s occupation at the time of the accident was as a tenant rather than as a gratuitous licensee. Compare Sordillo v. Fradkin, 282 Mass. 255, 257; Herman v. Golden, 298 Mass. 9, 12. And, since it does not affect the result, we assume that the plaintiff was not lacking in due care, notwithstanding her previous knowledge that the pipes were in the kitchen. See Reagan v. Belmont, 316 Mass. 467, 469-470; Winchester v. Solomon, 322 Mass. 7, 11.
It remains to consider whether in causing the pipes to be left where they were the defendant could have been found to be negligent. The answer to this question does not depend upon any technicality of the law of landlord and tenant as to the duty to repair but is to be determined on the basis of whether there has been a violation of “the simple duty of the defendant to refrain from negligent conduct causing injury to the plaintiff.” See Peay v. Reidy, 321 Mass. 455, 458, and cases cited; Ryan v. Boston Housing Authority, 322 Mass. 299, 303. We are of opinion that the evidence here would not warrant a finding that that duty was violated. The plaintiff knew when she moved into the premises that repairs were to be made. That was one of the terms of the letting. It is not to be expected that a house where extensive repairs are to be made will remain at all times in its normal state. The placing of the pipes in the kitchen was incidental to the repairing of the house. The plaintiff knew of this and did not object. Their location was open and obvious. In these circumstances the
Exceptions overruled.