289 Mass. 213 | Mass. | 1935
This is an áction of tort by a tenant at will against his landlord to recover damages for personal injuries sustained, on December 30, 1929, by the alleged “caving in” of certain steps said to have been defective through the defendant’s negligence. The issue presented to this court relates solely to the defendant’s control of the steps in question. All the evidence pertinent to that subject is contained in the bill of exceptions.
The material facts are as follows: On September 1, 1929, the defendant was the owner of certain premises known as number 5 Belmont Street, Ludlow, Massachusetts. These premises consisted of a two-tenement house, with an upper and lower tenement. A “landing, or piazza or porch and steps connected with said premises in the rear” and were used for both tenements. The plaintiff with his family moved into the lower tenement on September 1, 1929, as a tenant at will, paying rent by the month. The upper tenement was then vacant and remained so until about November 25, 1929, when a family by the name of Starzyk moved in. The plaintiff and his family, after they moved in, used the steps in passing over the back porch to and from a hallway connected with the lower tenement. Starzyk
At the close of the evidence the plaintiff requested the judge to instruct the jury as follows: “1. The steps in question remained in the control of the defendant landlord for the use of all his tenants; and there was a duty on the defendant landlord to maintain them in such condition as they appeared to be in at the beginning of the plaintiff’s tenancy. 2. The burden was on the defendant landlord to exercise reasonable care to keep the steps in question in the condition that they appeared to be in at the beginning of the plaintiff’s tenancy.” The judge refused to instruct the jury as requested; and he refused to rule “that the steps in question remained in the control of the defendant landlord for the use of all his tenants,” and left it to the jury
It is to be noted that there is no direct evidence that either tenant had any agreement with the landlord in relation to the use or control of the steps leading to the porch or concerning the use of the hallway at the foot of the stairway leading to the upper tenement. It is to be further noted that the plaintiff propounded and introduced in evidence as a part of his case certain interrogatories, among which was the following: “Was there a landing or piazza or porch and steps connected with said premises in the rear which the plaintiff had the right to use, in common with other tenants, as a means of entering and leaving his tenement?” This interrogatory was answered: “There was a landing, or piazza or porch and steps connectéd with said premises in the rear, which the plaintiff had a right to use in common with one other tenant.” A party putting in answers to interrogatories made by the opposing party is bound by the answers if there is no evidence tending to contradict them. Minihan v. Boston Elevated Railway, 197 Mass. 367, 373. Gordon v. Bedard, 265 Mass. 408, 411.
It was manifestly a question of fact which required the decision of the jury, and it could not have been ruled as matter of law on the evidence that the landlord retained control of the steps, or that he had rented the use of them to the plaintiff to be enjoyed by the plaintiff in common with one other tenant when such tenancy should come into existence. We find no error in the refusal to give the requested instructions or in the refusal to make the requested ruling.
Exceptions overruled.