320 Mass. 425 | Mass. | 1946
This is an action of tort, to recover damages for personal injuries sustained by the plaintiff when she fell
The rights of the plaintiff as against the defendant are no greater than those of the tenant, and if the latter could not recover then the former cannot prevail. Mills v. Swanton, 222 Mass. 557. Harrington v. Dorchester Fields Corner Storage Warehouse Co. 297 Mass. 85, 90. Marquis v. John Nesmith Real Estate Co. 300 Mass. 203, 205. Bacon v. Jaques, 312 Mass. 371, 373. The tenant took the premises in the condition in which they were at the time of the letting, and the landlord is not hable for an injury sustained by the tenant on account of the unsafe condition of the premises
There was no evidence that the banister was installed by the defendant in pursuance of any contract between the tenant and the defendant. It was a gratuitous undertaking made at the suggestion of the defendant’s agent with acquiescence by Mrs. Murphy and, if improperly performed, would impose liability only to her if she thereby sustained a personal injury and not to her guests, and even then there could be no recovery by her except upon proof of gross negligence upon the part of the defendant. Thomas v. Lane, 221 Mass. 447. Bergeron v. Forest, 233 Mass. 392. Giorgio v. DiLiegro, 285 Mass. 383. Andrews v. Leominster Savings, Bank, 296 Mass. 67. Diamond v. Simcovitz, 310 Mass. 150.
The location, construction and condition of the stairway and the banisters were open and obvious, and if the tenant wished to have the stairs lighted for the safety of her guest all she had to do was to turn on the light, the appliance for which was located in her apartment and under her control. The letting of a tenement with a winding stairway would not constitute a tort as against the tenant. Miles v. Janvrin, 196 Mass. 431. Pizzano v. Shuman, 229 Mass. 240. There was nothing about the situation existing at the time of the accident that could be properly characterized as “a trap,” as alleged in the. declaration. See Reardon v. Thompson, 149 Mass. 267; Redigan v. Boston & Maine Railroad, 155 Mass. 44; Moffatt v. Kenny, 174 Mass. 311; Chick v. Gilchrist Co. 208 Mass. 183; Mackey v. Lonergan, 221 Mass. 296; Cohen v. Davies, 305 Mass. 152. The stairway was not a dangerous instrumentality as alleged in the third count of the declaration. It is too plain for discussion that there is nothing that would bring the case within Carter v. Yardley & Co. Ltd. 319 Mass. 92.
Exceptions overruled. .