138 Mass. 315 | Mass. | 1885
The jury were warranted in finding that the defendant was seised of the premises, and in possession and control of that part of them where the accident happened. It
It does not appear distinctly whether the defendant himself had let the tenement from which the plaintiff’s intestate was coming at the time of the accident, but it seems probable that it was held at will, so that the case is not complicated by the question whether the landlord’s liability would be diminished by reason of that tenement being subject to a lease when the premises came into his hands. No such question was argued, and we assume that the defendant let the tenement when the premises were in their present condition, and therefore stands in the same position toward the public as if he himself had put the premises in that condition before the lease.
The plaintiff’s intestate went to the tenement referred to, to stop a disturbance of the peace which was taking place there, as he had a right to. Gen. Sts. e. 23, § 2. Pub. Sts. c. 34, § 2. He seems also to have been invited by the occupant, whose son was making the trouble. He arrested the son, but as the arrest does not appear to have affected his course in leaving the place, his right to recover would not be affected if the arrest were unlawful. He came on the premises lawfully, and could lawfully leave them.
Under the instruction of the court, the jury must have found that the intestate was using the passageway by the defendant’s invitation. That is to say, that the intestate had a right to understand from the appearance of the premises that the intended mode of approach to the tenement in question was over the open
Now supposing there had been a wrought avenue, and the accident had happened within it, as the avenue would have held out exactly as great an invitation to the public having lawful occasion to visit the tenement when some one else lived there as if the defendant himself had done so, the defendant would have been liable for any neglect to take proper precautions to make the avenue reasonably safe. Larue v. Farren Hotel Co. 116 Mass. 67. Sweeny v. Old Colony Newport Railroad, 10 Allen, 368.
But the principle of the case last supposed does not depend upon the way being wrought. If the appearance of the premises is such as to point out a certain open space as the mode of approach, while it may not be the defendant’s duty to take care of the whole open space as an approach, his duty to keep safe the approach offered, whatever it is, is as great as if it were a wrought avenue. And although the jury should regard less than the whole space as the approach proper, yet they would be at liberty to find, from the absence of any marks defining and separating the approach proper from the rest of the space, that an exceptional danger outside the former and in the latter made the approach itself unreasonably dangerous. See Barnes v. Chicopee, ante, 67, and cases cited; White v. France, 2 C. P. D. 308. To put it in another j way, the jury had a right to find that the plaintiff was properly where he was. Gilbert v. Nagle, 118 Mass. 278.
The defendant argues that the plaintiff was not using due care, because, coming to an obstacle fifteen inches high, in the dark, and stepping upon it, he then stepped forward, and so fell into the well. The jury, who regarded the well as making the passage dangerous, may have considered that the plaintiff had a right to assume that no such danger would be allowed to beset the way. We cannot say, as matter of law, that they were wrong. Severy v. Nickerson, 120 Mass. 306, 307. Fox v. Sackett, 10 Allen, 535, 536. Lawless v. Connecticut River Railroad, 136 Mass. 1, 6.
This disposes of all the questions argued before us, and of all the exceptions which were not waived. Exceptions overruled.
