Hawkes v. Broadwalk Shoe Co.

207 Mass. 117 | Mass. | 1910

Knowlton, C. J.

This action is brought against the plaintiff’s employer to recover for an injury received by falling upon a stairway which is alleged to have been slippery and dangerous from an accumulation of snow and ice upon it. The defendant occupied the second story of a three story building, as a tenant at will of the owner. The first and third stories were occupied by other tenants at will. The tenant of the third floor had a right to use, in common with the defendant, an interior stairway leading down to a doorway opening upon a platform outside of the building. From this platform steps, ten in number, led down to the ground at a point about fifteen feet distant from the public sidewalk, and these were used by all the tenants of the building. The platform and steps were about eight feet wide, and the steps passed down by the front wall of the building, with a railing running down to the ground over the outer ends of the steps. The only question in 'the case is whether these steps were a part of the ways or works of the defendant, which it was bound to keep safe for the use of the plaintiff.

The declaration is under the employers’ liability act, and the argument is made under the provisions of that act and the analogous doctrines of the common law.

The legal relation of the defendant to the steps where the accident happened seems to be that, as the tenant of the second story of the building, it was given a right, in common with others, to pass over the way from the street and up the steps and over the platform and through, the interior passageways to the premises occupied by it as a tenant, while the landlord retained the possession and control of the steps and other parts of the passageway, subject only to the rights of the tenants to pass over them. Under the decisions, we are of opinion that these steps were not a part of the defendant’s ways or works, within the meaning of the employers’ liability act. In Coffee v. New York, New Haven, & Hartford Railroad, 155 Mass. 21, 23, the court said that, by the language in the statute, “ we understand something in the place, or means, appliances, or instrumentalities provided by the employer, for doing or carrying on the work which is to be done. The use of other words may not make the meaning clearer, but it would seem that there must be a defect in something which can in some sense be said to be provided by the employer. ” These steps were not even upon the premises of the employer. They were not used in his business, but they were a part of the way over which the employer had a right of passage for itself and its employees, to enable them to reach its place of business. In Moynihan v. King’s Windsor Cement Dry Mortar Co. 168 Mass. 450, 452, upon the question whether a swinging stage was a part of the defendant’s ways, works or machinery, the court said: “ It would seem that an action could not be supported on that ground without proof that the defendant controlled or managed it. Trask v. Old Colony Railroad, 156 Mass. 298. Engel v. New York, Providence, & Boston Railroad, 160 Mass. 260.” See also Hyde v. Booth, 188 Mass. 290; Dunn v. Boston Northern Street Railway, 189 Mass. 62. In holding that the steps were not a part of the defendant’s ways or works, we do not find it necessary to go so far as this court has formerly gone in deciding similar cases.

It is equally true, for the same reasons, that the defendant was not liable to the plaintiff for the condition of the place at common law. The party responsible for the safety of the steps to the persons using them by invitation, was their owner, who retained them in his control. As a master, the defendant was liable to its servant at common law, only for the condition of those things provided by it which were directly connected with the business.

The plaintiff has argued, under the decision in Woods v. Naumkeag Steam Cotton Co. 134 Mass. 357, that the owner of the building would not be liable to this plaintiff, who was there under the tenant’s right, and that therefore the tenant ought to be held liable. That decision goes upon the ground that a tenant who, in connection with the hiring of his premises, hires a right of way over other property of his landlord, takes the way as it is, except for concealed defects of which the landlord ought to inform him, and that the landlord is not bound to change its construction or obvious condition ; also upon the further ground that the hiring of such a right of way does not put upon the landlord a duty of removing snow and ice which accumulate solely from natural causes. The hirer takes his right to use the way as it may be affected by snow or rain falling upon it. In that case it appeared that there was no change in the condition of the steps, “ except that resulting from the accumulation of ice and snow.” While it was held that the landlord was not bound to change the construction of the steps nor to remove snow or ice that accumulated on them from natural causes, it was not decided that the landlord might not be liable for a negligent use of the steps by himself or by other persons, which left them in a very rough and dangerous condition.

The liability of the defendant in this case does not depend upon the question whether the owner is liable, nor can the plaintiff justly complain if she is held to the rule applicable between landlord and tenant, that one having a. right of way out of doors, cannot compel the owner of the way to protect it from the direct effects of rain or snow.

Exceptions overruled.