231 Mass. 374 | Mass. | 1918
The following máterial facts appear in the report of the trial judge. The plaintiff as tenant occupied the third and fourth floors of a building on Portland and Chardon streets in Boston. The defendant, under a written lease, occupied the fifth floor of the building, directly over the premises of the plaintiff. In the premises of the defendant was a platform or balcony, eight feet wide and. forty feet long, raised about seven feet above the floor. This belonged to the defendant and was used for storing property. Some time before the events hereinafter mentioned a twelve inch beam, which rested on the floor and supported a corner of the platform, was removed by the defendant’s agents, leaving one corner supported by two" pieces of two inch by four inch joist, one of them five and the other two feet
About eight months after this change the owner of the building, under the order and directions of the fire prevention commission, placed a sprinkler system in the premises occupied by the defendant. It included two and one half inch pipes for carrying water; and one of these pipes was attached by two spikes to a timber holding up one end of the platform. Three or four months later the two foot joist, above described, fell to the floor, and caused one corner of the platform to drop, and break the sprinkler water pipe. A large quantity of water was discharged, and penetrated to the third floor of the building, damaging the property of the plaintiff. The plaintiff’s claim to recover for that loss is based on the alleged negligence of the defendant.
The judge’s finding imports that the defendant was not negligent as matter of fact; and there was no error in the refusal to give the plaintiff’s second and third requests. The first request was denied rightly unless on the-facts found it must be said as matter of law that the damage complained of was caused by the defendant’s negligence. Some vibration of the building was caused by the operation of its laundry machinery, but it was no greater after the sprinkler system was put in than before. The order given to equip the building with automatic sprinklers was directed to the owner, and not to the tenant. See St. 1914, c. 795, §§ 10, 12. Under the terms of the defendant’s lease the owner (lessor) had a right to enter the leased premises and make repairs and alterations, and did in fact install the water pipe which later was broken. So far as the evidence discloses, the defendant took no part in the installation of the sprinkler system, was not consulted about attaching the pipe to the timber holding up one end of the platform, and was not given any control over or responsibility for the repair of the system after it was installed. Looking back after the accident, it may appear that the platform support which fell was insecure; but it had served for a year, including three or four months after the sprinkler system had been completed, and it does not appear that during that period the defendant had notice that it was inadequate or unsafe. It was a question of fact whether on all the evidence the damage was due to negligence, and, if so, whether the negligence was that of the defendant; and the trial
What we have said disposes of the questions raised by the appeal to the Appellate Division. St. 1912, c. 649, §§ 8, 9. The judge may have found that the damage was caused by actual negligence on the part of the landlord or his agent, in attaching the water pipe where and as he did; and cases like Wixon v. Bruce, 187 Mass. 232, are not applicable.
Order dismissing the report affirmed.
