Mackey v. Lonergan

221 Mass. 296 | Mass. | 1915

Carroll, J.

The plaintiff was injured upon the premises of the defendant which were used by the defendant’s tenant as a pool room and bowling alley. In the employ of the tenant was a young boy who made his home with the plaintiff. On Saturday, December 7, 1912, at about twelve o’clock, the plaintiff walked from her home to the bowling alley, to tell the boy to come to his dinner. The door leading to the pool room was at the head of a stairway, and as she opened the door, being unfamiliar with the place, she stepped on the top of the stairway and fell to the bottom, receiving injuries on account of which this action is brought.

When the plaintiff entered the premises of the defendant, she was there either as a licensee or as one invited. Making the most favorable assumption in favor of the plaintiff, then at most she was an invited guest of the tenant, and as such, she has as against the landlord the same right that the tenant himself had, but no greater rights than his. The plaintiff having been invited to the premises by the tenant, and the premises having been in the same condition at the time of her injury that they were at the time of the contract of hire, the landlord is not liable. The plaintiff was not injured on a common passageway where the control remains in the landlord and the obligation is upon him to maintain such passageway in the condition it appears to be in at the time of the letting. Andrews v. Williamson, 193 Mass. 92. And there was no contract on the part of the landlord to keep the premises in repair, and a negligent failure on his part to carry out this agreement. Galvin v. Beals, 187 Mass. 250. Nor was there an agreement to keep the tenement in a safe condition for the use of the tenant, as explained in Miles v. Janvrin, 196 Mass. 431. It is the ordinary case where a store is leased with no express assurance on the part of the landlord that the premises are safe, and where the law implies no such assurance, where the tenant is like a purchaser with no implied warranty of fitness, or where, in the absence of fraud, he takes the premises as he finds them and the landlord is not responsible, either to him or to his guests or patrons, for any injury which happens thereon.

The plaintiff therefore cannot recover. The verdict was rightly ordered for the defendant; and in accordance with the terms of the report, judgment is to be entered for the defendant.

Ordered accordingly.