314 Mass. 613 | Mass. | 1943
This is an action of tort, brought by a mother living with a daughter who was the tenant of an apartment in an apartment house owned by the defendant, to recover for bodily injuries sustained on August 14, 1940, when the plaintiff fell because her heel caught in the brass edging or “nosing,” about an inch and a half wide, of the third step from the top of a common stairway provided for all the tenants. The jury returned a verdict for the plaintiff, but under leave reserved (G. L. [Ter. Ed.] c. 231, § 120) the judge entered a verdict for the defendant, subject to the exception of the plaintiff to that action, which presents the only question in the case, '
The general rule as to the liability of a landlord to a tenant and, among others, to a member of the tenant’s family (Coupe v. Platt, 172 Mass. 458; Domenicis v. Fleisher, 195 Mass. 281, 283, 284; Peirce v. Hunnewell, 285 Mass. 287, 290; Wynn v. Sullivan, 294 Mass. 562, 565; Marquis v. John Nesmith Real Estate Co. 300 Mass. 203, 205; Silver v. Cushner, 300 Mass. 583; Diamond v. Simcovitz, 310 Mass. 150, 153; McNeill v. Home Savings Bank, 313 Mass. 664, 666), for defects in a common passageway, is well settled. The landlord owes a duty, not to keep the common passageway in as good a condition as that in which it was or appeared to be at the time of the letting, but rather to use reasonable care to do so. Andrews v. Williamson, 193 Mass. 92. Grady v. Gardiner, 272 Mass. 491. London Tobacco Co. Inc. v. Freeman, 280 Mass. 368. Sordillo v. Fradkin, 282 Mass. 255. Griffin v. Rudnick, 298 Mass. 82. Marquis v. John Nesmith Real Estate Co. 300 Mass. 203. Dunlea v. R. D. A. Realty Co. 301 Mass. 505, 508. Russo v. Rizzo, 302 Mass. 177. Shwartz v. Feinberg, 306 Mass. 331. Bacon v. Jaques, 312 Mass. 371. This is made wholly clear by Williams v. Pomeroy, 254 Mass. 290, Berg v. Elder, 290 Mass. 540, and Chambers v. Durling, 306 Mass. 327, 330.
The defendant contends that the variation from the normal was not enough to warrant a finding of negligence on the part of the defendant. We have found no case in which a projection or protrusion as small as that in this case has been held sufficient to allow a case to go to the jury. In Jennings v. Tompkins, 180 Mass. 302, and in Johnson v.
In cases where recovery has been allowed, the projection or protrusion has been greater. In Young v. Snell, 200 Mass. 242, and Shavelson v. Marcus, 273 Mass. 237, a nail stuck up out of the floor an inch or more. In Serota v. Salmansohn, 256 Mass. 224, the original papers show a projection of a nail for about one and a half inches. In Shwartz v. Feinberg, 306 Mass. 331, a nail projected about an inch, and had been projecting for several months. In Solomon v. Boston Elevated Railway, 276 Mass. 139, a broken metallic tread projected three quarters of an inch. In Hillis v. Sears, Roebuck & Co. 284 Mass. 320, a ragged metal band projected about an inch. In Fowler v. South End Amusement Co. 299 Mass. 317, the nosing was pulled forward three quarters of an inch and was high enough above the step to catch the plaintiff’s low heel. See also Wheeler v. Sawyer, 219 Mass. 103. In Dunlea v. R. D. A. Realty Co. 301 Mass. 505, the nosing was raised high enough to admit fingers under it. In Loudon v. Beaulieu, 277 Mass. 33, a brass nosing of a step was raised half an inch or more.
In this case we think there was no sufficient evidence of negligence on the part of the defendant.
Exceptions overruled.