O'Malley v. Twenty-Five Associates, 170 Mass. 471

O'Malley v. Twenty-Five Associates

170 Mass. 471 | Mass. | 1898

Field, C. J.

There was evidence for the jury that the hoisting apparatus was put in by the defendant, and was intended to be used by all the tenants of the building, and that it was not in the exclusive control of any one tenant, but was under the general control of the landlord, subject to the use of it by all the tenants.

The exceptions recite: “ The plaintiff called witnesses to show that, within a few days after said apparatus fell and was broken, the defendant put another in its place, and has ever since maintained it for the use of the tenants aforesaid. Counsel for plaintiff stated that this evidence was offered, not for the purpose of proving negligence, but upon the question of control of the apparatus, and for no other purpose; but the court excluded the evidence, and the plaintiff seasonably excepted.” This evidence should have been admitted for the purpose for which it was offered. It had some tendency to show that the defendant admitted that it was its duty to maintain a suitable hoisting apparatus for the use of the tenants. Of the other evidence excluded by the presiding justice, tending to show that the defendant made the outside repairs, some of it at least, we think, should have been admitted for the purpose of showing that the defendant recognized it as its duty to make such repairs, which might have been found to include repairs upon the hoisting apparatus. Readman v. Conway, 126 Mass. 374. Poor v. Sears, 154 Mass. 539.

This is not a case where it was conclusively shown that the hoisting apparatus was in the exclusive control of the tenant Dias, or of all the tenants of the building. See McKeon v. Cutter, 156 Mass. 296. If the defendant furnished and retained control of this apparatus as a means provided for hoisting merchandise for the use of its tenants, it was its duty to take reasonable care to furnish a suitable apparatus and to keep it in *478suitable condition. Lynch v. Swan, 167 Mass. 510. Wilcox v. Zane, 167 Mass. 302. Marwedel v. Cook, 154 Mass. 235. Learoyd v. Godfrey, 138 Mass. 315.

There was evidence for the jury that the plaintiff, engaged in hoisting coal for Dias, a tenant, was in the exercise of due care; that the apparatus was intended to be used by dealers in coal and their servants for hoisting coal for the use of the tenants'; that the weight of the coal hoisted was not unusual or greater than what the hoisting apparatus was intended to bear; that the hook which broke was of insufficient strength, and was made of east iron, which the jury might have found to be unsuitable material ; and that it was too small. It was for the jury to determine on the evidence whether the defendant had or had not exercised due care in furnishing and keeping in repair a proper hoisting apparatus. See Hayes v. Philadelphia & Reading Coal & Iron Co. 150 Mass. 457. In the opinion of a majority of the court the entry must be,

Exceptions sustained.

Holmes, J.

Mr. Justice Knowlton, Mr. Justice Lathrop, and myself are unable to agree with the decision of the majority of the court, and we think it best to state the fact and the reasons for our dissent, were it only to prevent the decision from being taken as a precedent for more than it decides. The plaintiff may be held entitled to recover upon either one of two different grounds. He may be held to have rights of his own independent of those of a tenant, and greater, by reason of an invitation supposed to have been extended by the defendant directly to him, or he may be supposed to stand in the tenant’s shoes, and it may be said that a tenant would have a right of action if he were hurt as the plaintiff was. It would be premature to assume that either of these grounds has received the sanction of a majority of the court, since neither of them is adopted in terms. We regard both as equally untenable. . In the first place, there seems to us to be no invitation to the public or to any part of it. A contrivance of this sort is not like a way or a staircase, and as to them see Ganley v. Hall, 168 Mass. 513, and cases cited. It is not put up with reference to the public in the least degree, but solely for the convenience of the tenants. If a member of the public should use it, except by the license express or implied of *479a tenant, he would be a wrongdoer. If it be conceded that the plaintiff has no other rights than those which he can claim under the tenant, (Wilcox v. Zane, 167 Mass. 302, 306,) we are of opinion that no breach of duty is disclosed. In exceptional circumstances a landlord may be held liable for a defect in the premises let, on the ground that it was a trap. But the general rule follows the principles of caveat emptor. Moynihan v. Allyn, 162 Mass. 270. Cutter v. Hamlen, 147 Mass. 471, 475. Bowe v. Hunking, 135 Mass. 380. There is nothing here to take the case out of the ordinary rule. The premises are let as they are. There is a rope with a hook on the end of it running over a wheel, which may be used in connection with the tenement. It is evident that the hook and rope are not infinite in strength. We think that there is no warranty or undertaking as to when the limit of their endurance will be reached. What happened was simply that a greater strain was put upon the hook than that kind of hook will bear. The whole tackle is of a common and well known sort. A tenant has no right to complain because the landlord did not substitute a stronger one.