302 Mass. 373 | Mass. | 1939
The plaintiff seeks to recover damages for personal injuries received by her as the result of the breaking of a portion of a step or platform which provided an entrance to a store, conducted by one Fatticanti, in a building owned by the defendant. The plaintiff had made a purchase in the store and was on her way to the street when the overhanging edge of the step or platform broke and she fell upon the sidewalk.
The case was tried before the judge of a district court. He found for the plaintiff and reported to the Appellate Division his “rulings and refusals to rule as requested” by the defendant, and there the report was ordered dismissed.
The report states that the judge “made the following specific findings of fact: 1. The defendant was the owner of the premises No. 355 Bridge Street, Lowell, which, at the time of the accident, were occupied by one Fatticanti. 2. The defendant retained the control of said premises and made all repairs, both inside and outside. 3. On a certain day in September, 1927, as the plaintiff came out of the
At the close of the evidence at the trial the defendant filed nine requests for rulings-. One of the requests was: “Upon all the evidence the only duty that reposed upon the defendant was to use ordinary care to keep the premises in a reasonably safe condition.” This was granted. The defendant then asked, and was given permission, to file at a later time additional requests for rulings and later filed eight more requests for rulings. They all contained the assumption that the relationship of landlord and tenant existed between the defendant owner of the building and the occupant of the store. The judge denied all these eight requests for the stated reason that they were inapplicable to the facts found by him. He did not include in the findings of fact filed by him a finding as to the character of the relationship existing between the defendant and the occupant. The practice of a judge who has denied requests for rulings on the ground that they are inapplicable to the facts which he has found, without making it clear what facts he did find, has frequently been condemned. Commonwealth v. Hull, 296 Mass. 327, 336. Mericantante v. Boston & Maine Railroad, 291 Mass. 261, 263. Freeman v. Crowell & Thurlow, Inc. 296 Mass. 514, 518. See Mazmanian v. Kuken, 285 Mass. 516, 518.
In the present instance we think enough appears in the record to indicate that the judge found the relationship of landlord and tenant did not exist between the defendant and the occupant of the store. The denial of the eight requests, all of which contain the common factor of the
The evidence with respect to the character of the relationship existing between the defendant and the occupant was somewhat meagre. It is here fully set out. The defendant, who was called as a witness by the plaintiff, testified as follows: He had owned the building where the store was located for five years at the time of the plaintiff’s accident; “at one time he ran the store himself . . . there came a time when he stopped running the store himself.” He was asked: “You let it then to Mr. Beaudry?” and answered: “I sold it.” Beaudry ran the store for some time and then sold it to Fatticanti. When the defendant “stopped running the store and Beaudry or Fatticanti took it over it was the understanding that he, the defendant, was to do the repairing, all of 'the repairs, inside and outside ... he did all the repairing, all the time, while Beaudry was there and Fatticanti was there, and nobody else did any repairing.” He testified that within a week after the accident he sawed off the projecting edge of the step or platform “because it wasn’t safe . . . the wood was rotten” where the projection was, though the rest of the wood was sound. A witness who had been a clerk in the store while Beaudry and while Fatticanti ran it, testified he had seen the defendant make repairs in the store and never saw anyone else make repairs.
It is clear from the evidence that some relationship
We are of the opinion that the evidence, with reasonable inferences therefrom, warranted a finding that Fatticanti was occupying the premises at the time of the plaintiff’s fall as a licensee of the defendant. See Am. Law Inst. Restatement: Torts, § 330, c, d; Percival v. Chase, 182 Mass. 371, 375; Roberts v. Lynn Ice Co. 187 Mass. 402, 406; Grasselli Dyestuff Corp. v. John Campbell & Co. 259 Mass. 103, 107; Gaertner v. Donnelly, 296 Mass. 260, 262. That the judge so found is shown by his ruling that the obligation resting on the defendant was to use ordinary care to keep his premises in reasonably safe condition. That is the obligation as to using care which the owner of premises who has given a license for their use owes to the licensee and to persons using the premises in the right of the licensee and for purposes contemplated when the license was granted. Shrigley v. Boston Symphony Orchestra, Inc. 287 Mass. 300, 302, and cases cited.
There was evidence warranting findings that for some time prior to the plaintiff’s fall there was an apparent defect in the step or platform which might have been discovered by reasonable care on the part of the defendant, that the defendant failed to use adequate care to keep the step or platform in a reasonably safe condition for the purpose for which it was to be used, and that the plaintiff was in the exercise of due care.
We find no error in the admission of evidence. The plaintiff testified that when she first returned to the premises after the accident she saw a hole in the step where her foot had gone through, that the wood was splintered around
Order dismissing report affirmed.