Looney v. McLean

129 Mass. 33 | Mass. | 1880

Colt, J.

The plaintiff’s husband hired and occupied one of several tenements in the defendant’s building. The jury, under the instructions given, have found that she was injured, without fault on her part, while using a defective stairway apparently intended to furnish access to the roof of a shed used in common by the other tenants for drying clothes. They must have found, also, that no other mode of access had been pointed out to the plaintiff; that no caution had been given as to the use of these steps; and that there was nothing in their appearance which would indicate to a prudent person that they were unsafe. The instructions given were sufficiently favorable to the defendant. They made him responsible only for such parts of his house as remained under his own general control and management.

There is no implied warranty in the letting of a house that it is safe and fit for habitation. A lease does not imply any particular state of the property let, or that it shall continue fit for the purposes for which it is let; unless otherwise stipulated, the tenant takes the premises as they are, and must pay the rent for the term. But this rule applies only to premises which, by the terms of the lease, have passed out of the control of the landlord into the exclusive possession of the tenant. Where a portion of a building is let, and the tenant has rights of passageway over staircases and entries in common with the landlord and the other tenants, there is no such leasing as will exonerate the landlord from all responsibility for the safe condition of that portion of which he still retains control, and which he is bound to keep in repair; as to such portion, he still retains the responsibilities of a general owner to all persons, including the tenants of his building. Leavitt v. Fletcher, 10 Allen, 119. Foster v. Peyser, 9 Cush. 242. Readman v. Conway, 126 Mass. 374. Milford v. Holbrook, 9 Allen, 17.

The case shows that the plaintiff had a simple right oí access to the shed over this staircase, as incident to her occupation of the premises leased to her. The duty of the defendant, having still the possession and control of the same, was to protect her from injury in that right by the use of reasonable care on his part. The stairway was apparently intended to furnish a passageway for her use; and the defendant is responsible for injuries received by one entering upon the same by his invitation or procurement, express or implied. Sweeny v. Old Colony Railroad, 10 Allen, 368. Elliott v. Pray, 10 Allen, 378.

The fact, if proved, that the plaintiff had previous knowledge that the stairs were in a dangerous condition, would not be conclusive evidence that the plaintiff was not in the exercise of due care. Whittaker v. West Boylston, 97 Mass. 273. Reed v. Northfield, 13 Pick. 94.

The requests for instructions, in the form presented, were properly refused. Exceptions overruled.