Howard v. Central Amusement Co.

224 Mass. 344 | Mass. | 1916

De Courcy, J.

The plaintiff Fannie B. Howard, (hereinafter called the plaintiff,) while walking on the sidewalk of Union Street in Lynn, was struck by a piece of concrete or stucco which broke from one of the ornaments on the front of the defendant’s building. The jury returned a verdict in favor of the tenant, the Central Amusement Operating Company, and against this defendant, the owner of the property.

1. The stucco ornament from which the piece broke and fell was about three feet wide and three and a half feet long, weighing four or five hundred pounds. There was evidence for the jury that in its composition improper materials had been used which would disintegrate and crumble when subjected to the influence of the weather and to the vibration caused by passing trains; that the ornament was so constructed that water could get between it and the bricks and there form ice, tending to throw it off from the main building; and that it was not securely joined to the main structure by being built into the bricks or otherwise attached or supported. It could be found that the directors of the defendant, who supervised the construction of the building, not only ought to - have anticipated the possibility of danger in this part of the permanent structure, but that their employee, King, who had charge of the »work, expressly warned them that the cement which they substituted for white cement mortar, would not stand and that the stucco work was not being properly attached to the brick front. In short there was evidence for the jury that this ornamentation constituted a menace and danger to pedestrians on Union Street at the time the defendant let the building to the other corporation (the officers of which apparently were the same as those of the defendant), and that it took no precaution to guard against such danger, or to provide that the tenant should do so. Such a permanent condition of the premises constituted a continuing nuisance, dangerous to persons using the public way; and the letting of the premises did not relieve the defendant from liability for injuries suffered therefrom, due to its authorized and contemplated use. Dalay v. Savage, 145 Mass. 38. Maloney v. Hayes, 206 Mass. 1.

2. The foregoing disposes of the defendant’s requests numbered 1, 3, 4 and 6. The others, with the exceptions of the second and ninth, were given in substance or sufficiently covered by the charge.

3. Requests two and nine raise a question of pleading. The plaintiff, instead of bringing separate actions against the landlord and the tenant, joined them in a single writ and declared upon negligence in the construction and the maintenance of the building. Presumably, both could not be held in the absence of joint negligence. Harriott v. Plimpton, 166 Mass. 585. Hunt v. New York, New Haven, & Hartford Railroad, 212 Mass. 102. By the verdict of the jury, however, the tenant is out of the case. A verdict rendered by the jury as the result of deliberation is as effectual in this regard as one rendered by direction of the court. Warren v. Boston & Maine Railroad, 163 Mass. 484. As appears from what has been said, there was ample evidence of the liability of the present defendant. If it be assumed that the second and ninth requests should have been given, that affords the present defendant no ground for complaint. Nothing stands in the way of entering judgment in favor of the plaintiff against the present defendant. Where two or more are sued jointly and the action is not discontinued against any, “taking judgment against one not only operates as a discontinuance, but constitutes a bar to obtaining judgment against the others.” Cameron v. Kanrich, 201 Mass. 451, 452. There is nothing in Contakis v. Flavio, 221 Mass. 259, inconsistent with this conclusion. The technical difficulty about the entirety of a joint judgment has no application to proceedings before judgment. Munroe v. Carlisle, 176 Mass. 199, 201. It is not necessary to consider whether St. 1913, c. 716, is pertinent. The defendant has suffered no harm. Smith v. Commonwealth, 210 Mass. 259, 262.

4. There were exceptions to portions of the judge’s charge, and to the admission of evidence. It would serve no useful purpose to discuss these in detail, — we have considered them and discover no reversible error.

Exceptions overruled.