Maionica v. Piscopo

217 Mass. 324 | Mass. | 1914

De Courcy, J.

The defendant was the owner of a five story

building containing sixteen tenements, situated on the corner of Moon and Fleet Streets in Boston; and the plaintiff had been a tenant therein for nine years at the time of the accident. From the front entrance on the street there ran a practically straight hallway to the rear door, where there was an iron platform with iron steps descending therefrom into the back yard. The platform and steps were attached to the wall of the building, and the outer side of each was guarded by an iron railing or fence. On May 12, 1911, as the plaintiff stepped from the hallway to the platform she slipped and while in the act of falling she grasped this railing; it gave way, and she was thrown to the ground and seriously injured.

We do not understand that the plaintiff’s due care is in dispute. There was ample evidence that the iron railing, although apparently in good condition, was in fact so eaten into by rust that it afforded no real protection. Seasonable examination would have disclosed this defective condition, as was demonstrated by the appearance of the fragment that was exhibited in evidence.

The platform and the back stairs connected with it were used in common by the various tenants of the building. The duty of keeping this railing in as good condition as it appeared to be in at the beginning of the plaintiff’s existing tenancy was imposed upon the person in whose control it remained. Domenicis v. Fleisher, 195 Mass. 281, and cases cited. Unquestionably that control and duty rested upon either the defendant, or one Zerella. If the paper in evidence, purporting to be a lease of the entire building from the defendant to Zerella, was a genuine and complete statement of their interest in the property in question, then the defendant was under no obligation to the plaintiff to maintain this railing, and the jury were so instructed. But however binding this paper may have been between Piscopo and Zerella, the plaintiff was not a party thereto and was not bound by it. Wilson v. Mulloney, 185 Mass. 430. Her contention was that the alleged lease was a sham, a mere paper transaction devised to shield the owner of the property from the responsibilities of ownership; or at least that, whatever Zerella’s real right was in the property, the defendant and not Zerella was in control of the platform and railing at the time of the accident.

•The bulk of the testimony was directed to this controlling issue. Among other things it appeared that, although the term of this lease purported to be for five years beginning October 1, 1910, the defendant had given to Zerella an earlier lease for three years, beginning November 1, 1909, when a similar and unexpired lease to one Melchianna was outstanding. There was also evidence tending to show that when Zerella attempted to raise the plaintiff’s rent to $16 she went to the defendant, and he told her not to pay more than $11, and the increase was not put into effect; and that in June, 1911, when the defendant wanted to evict the plaintiff because she had sued him, notwithstanding the existence of this Zerella lease he made a new lease of her premises in order to enable a civil constable to give her a notice to vacate. The defendant also had a policy for accident insurance covering this building, and to the question in the application “Occupation of employees? ” the answer made by him was “ Care and custody of premises.” The defendant also, during the pendency of the alleged lease, made repairs on the roof, water conductors and gutters, employing a man who commonly made the repairs on his other tenement properties; and he employed Zerella to put in new windows throughout this building. Finally it appeared that after the accident the defendant replaced the broken railing with a new one. To the admission of much of this evidence the defendant excepted, but it was competent for the narrow purpose for which it was admitted, namely, to show that the defendant retained possession and control of the platform at the time of the plaintiff’s injury. There was ample evidence that he did have such control, and that consequently the obligation rested upon him to maintain the railing in as good condition as it appeared to be in when the plaintiff began her last tenancy. Ward v. Blouin, 210 Mass. 140. Wilson v. Mulloney, 185 Mass. 430. Perkins v. Rice, 187 Mass. 28. Readman v. Conway, 126 Mass. 374. Grella v. Lewis Wharf Co. 211 Mass. 54.

As to the rulings requested and refused. It follows from what has been said that the trial judge rightly refused to give the first. The second was given in substance as being the effect of a bona fide lease that expressed the entire contract between the parties. The third, fourth, fifth, seventh, eighth, fourteenth, fifteenth and twenty-fourth requests were not applicable, because the plaintiff’s action was not based on the alleged breach of a landlord’s agreement to make repairs. The twelfth assumes that the defendant’s only obligation to keep the railing in repair was created by the lease; whereas the plaintiff made no such contention. The thirteenth, eighteenth and nineteenth assume the truth of the defendant’s evidence on the main facts that were in controversy, and were rightly refused. The portions of the charge that related to the subject matter of his requests were sufficiently favorable to the defendant.

Exceptions overruled.