The plaintiff finished her day’s work a little before six o’clock on the afternoon of February 27, 1940, at her employer’s place of business, located in the defendant’s building which was set back thirty to forty feet from the southerly line of Beacon Street, in Boston. She was proceeding over this setback area on her way to the street along a path that had been cleared of snow by the defendant’s janitor when she slipped and fell upon ice, formed from water that had collected in a depression. She had a verdict on a count alleging negligence on the part of the defendant. The defendant excepted to the denial of its motion for a directed verdict, to the refusal of requests for instructions, and to a portion of the charge. These exceptions rest upon two contentions, (1) that the plaintiff was a licensee at the time she was injured, and (2) that the defendant owed her no duty to remove the snow and ice and to sand the ice at the place where she fell.
The defendant’s janitor previous to the accident had shovelled a path commencing at the entrance to the store, then continuing by the other two doorways to the wall and along the wall to Beacon Street. He had cleared the snow and sanded the ice in the same location as this path on previous occasions, before and during the term of the lease, whenever there had been a snow storm. The president of
We assume in favor of the plaintiff that the lease of the store and basement granted to the lessee, as appurtenant to the premises described in the lease, the right to use the front yard as a common passageway as a means of access between the store and the street, Oliver v. Dickinson, 100 Mass. 114; Crabtree v. Miller, 194 Mass. 123; Tremont Theatre Amusement Co. v. Bruno, 225 Mass. 461; Maran v. Peabody, 228 Mass. 432, that she had the same rights as her employer in travelling between the store and the street, and that in doing so she was not a licensee toward the defendant. Domenicis v. Fleisher, 195 Mass. 281. Hawkes v. Broadwalk Shoe Co. 207 Mass. 117. Baum v. Ahlborn, 210 Mass. 336. White v. Beverly Building Association, 221 Mass. 15. Grady v. Gardiner, 272 Mass. 491. Bacon v. Jaques, 312 Mass. 371.
The defendant, by reserving the front yard in its possession and control for the use of all its tenants in the building,' did not, in the absence of any agreement with the tenants, assume any obligation to keep the yard free from snow or ice or to sand the ice, and the only obligation that the law imposed upon it with reference to this area was' one that arose out of the relationship of landlord and tenant and required it to keep the area in the same condition • as to safety in which it was or appeared to be at the time of the letting. Silver v. Cushner, 300 Mass. 583. Chambers v. Durling, 306 Mass. 327. It is undisputed that the depression at the place of the accident had existed before and since the tenancy of the lessee, the plaintiff’s employer, had commenced. The defendant was not bound to improve the way by eliminating the depression, and if the accident was caused solely by the depression, the plaintiff could not recover. Sullivan v. F. W. Woolworth Co. 305 Mass. 378. Boisse v. Goldberg, 306 Mass. 336.
The plaintiff bases her case upon the alleged negligent failure of the defendant to sand the ice, and asserts that it owed her a duty to do so. The mere relationship of landlord and tenant did not impose any duty upon the defendant to
The plaintiff relies upon Nash v. Webber, 204 Mass. 419, and Erickson v. Buckley, 230 Mass. 467. In the first case the obligation to remove snow and ice arose from the construction of the lease, which, although ambiguous, could in the light of the conduct of the parties be found to impose such a duty upon the lessor; while, in the second case, a similar obligation could be found to be included within the oral contract of letting. In the first case it was said at page 425 that the defendant might be held hable for a negligent breach of a duty to remove the snow if it was shown “that, as to his relations with the plaintiff’s mother [the tenant], he actually had taken upon himself the duty of keeping these stairways clear and free from snow, so that she had a right to rely upon his performance of that duty.” It is plain that the duty referred to was one arising out of a contract. Just previous to making the above statement the court carefully pointed out the difference between a voluntary undertaking of a landlord and one assumed under a contract, and rested the statement upon the case of Miles v. Janvrin, 196 Mass. 431; S. C. 200 Mass. 514, where the evidence showed that the landlord entered into a contractual relation with the tenant by which he agreed to keep a part of the demised premises in safe condition for the use of the tenant. There is nothing in this statement inconsistent with the general rule that the land
Exceptions sustained.