262 Mass. 317 | Mass. | 1928
This is an action of tort to recover compensation for personal injuries alleged to have been sustained by the plaintiff by reason of a defective condition of a “dry shed” maintained by the defendant for the common use of all his tenants in a building in which the plaintiff’s husband was a tenant. At the close of the plaintiff’s case the defendant without resting moved that a verdict be directed for the defendant, which motion was denied.
The court could not be required to rule on the defendant’s motion for a directed verdict until the evidence was closed. The presentation of such motion by the defendant without resting and without renewing the motion at the close of the evidence gave him no valid exception. Wetherbee v. Potter, 99 Mass. 354, 359, 360, and cases cited. Riley v. Lally, 172 Mass. 244, 245. Hall v. Wakefield & Stoneham Street Railway, 178 Mass. 98, 100. Antonacopoulos v. Arax Grocery Co. Inc. 234 Mass. 125, 128.
If, however, it be assumed in favor of the defendant that the case can be considered on its merits, there was no error. There was evidence tending to show that at the beginning of the tenancy in August, 1924, the platform of the “dry shed” appeared to be in good condition; that in May, 1925, the plaintiff was going there for the purpose of hanging out and drying clothes; that when she stepped upon the board flooring of the platform “the whole thing loosened,” “the boards all went from under me,” “the boards were crumbly and rotten,” “the boards tilted and threw me”; that she did not know exactly what happened and she might have stubbed her toe on the threshold in passing from the top of the stairs
This evidence afforded ground for a finding of fact that the flooring of the “dry shed” which appeared to be in good condition at the beginning of the tenancy had since then deteriorated and had become dangerous at the time of the accident. This is not a case where the plaintiff has committed himself to one definite statement of facts as in Sullivan v. Boston Elevated Railway, 224 Mass. 405, but presents conflicting narrations of the happening of the accident, where it is for the jury to find the truth if possible. Cameron v. New England Telephone & Telegraph Co. 182 Mass. 310. Larson v. Boston Elevated Railway, 212 Mass. 262, 267. Gold v. Spector, 247 Mass. 110, 111, and cases collected. The “dry shed” with its flooring remained in the control of the landlord for the use of all his tenants, and the burden was upon him to maintain it in such condition as it appeared to be at the beginning of the tenancy.. If he failed in this respect, he would be liable to the plaintiff for injuries resulting from his negligence. Flanagan v. Welch, 220 Mass. 186, 191.
Evidence to the effect that the janitor of the defendant shortly after the injury to the plaintiff was seen to “nail a board on some part of the platform” rightly was admitted in rebuttal for the sole purpose of meeting testimony introduced by the defendant that the platform was in the same condition after the accident as it was just before the plaintiff’s husband became a tenant of the defendant. Shinners v. Proprietors of Locks & Canals, 154 Mass. 168, 171, 172.
Exceptions overruled.
