191 Mass. 30 | Mass. | 1906
Even if it be assumed that the plaintiff’s intestate was in the exercise of due care, that the apparatus for lowering the gate was out of order, and that the accident was due to its defective condition, still there is one fatal defect in the plaintiff’s case as against the defendant corporation.
This corporation was, it is true, the owner of the building at the time of the accident, but it had leased the whole of it to two separate tenants, of whom one had the second, third, fourth and fifth stories and the other the basement, first and sixth stories. In each lease the lessee agreed to “ keep all and singular the said premises in such repair as the same are in at the commencement of said term, or may be put in by the said lessor or its representatives during the continuance thereof.” The alley off Kingston Street giving access to the elevator was provided with a gate which was locked by these tenants at night and opened by them in the morning. In neither lease was there any express mention of the elevator or of the repairs of it or of the gates or entrances thereto. The corporation made any repairs on the building of the need of which they had notice, but they had nothing to do with the running of the elevator, nor did they care for it or furnish power for it. It was left wholly in the charge of the tenants.' There is no evidence that, at the time of the letting, the elevator and its appliances were not in good condition.
Even if the corporation had subsequently made repairs at times, and even if this fact had a tendency to show that it was expected to make repairs, still under the circumstances it must be held that, as between the corporation on the one hand and the tenants and their customers on the other, the corporation was not answerable for a defect until after reasonable notice of its existence.
So ordered.