127 Mass. 403 | Mass. | 1879
This case depends on the construction and effect of the agreement of October 1, 1876, which is made a part of the report. Before it was executed, Elijah D. Goodrich was in possession of the premises owned by the defendants, under a lease for years, and had the entire control thereof. He, and not the landlord, was bound, as between himself and the public, so far to keep the buildings and structures abutting on the highway in repair that the way should be safe for travellers. Kirby v. Boylston Market Association, 14 Gray, 249. Shipley v. Fifty Associates, 101 Mass. 251. Leonard v. Storer, 115 Mass. 86. The question, therefore, arises, whether the agreement of October 1 made such a change in the relations of the parties to the premises as to shift the responsibility from Goodrich to the defendants.
It is argued by the defendants that that agreement is void because it was signed by only one of the two trustees. This position, however, is not open to the defendants, because the report shows that they admitted at the trial that they made the agreement.
A majority of the court are of opinion that, under this agreement, for the three months ending with January 1, 1877, Goodrich had the right to lease all vacant parts of the premises, and to receive the rents thereof, as well as the rents of the parts already let, to his own use; and that the defendants had no authority in nor control over any part of the building, for any purpose. The old lease was terminated, and the existing subleases were assigned to them; but by the same instrument by which this was effected, the rents for the parts leased, with the right to lease the rest and receive the rents, were granted to the original lessee, he undertaking to pay such rent therefor that, at the end of the three months, the defendants should have received for the whole year the same net rent as if the lease had not been terminated, less- the amount of taxes for the year. The only change wrought by the agreement, for the three months, was that Goodrich was released from the duty to pay the taxes, and
This being the effect of the agreement of October 1,1876, and the injuries of the plaintiff having been received in consequence of a negligent use of the coal-hole in the sidewalk connected with the premises, during the three months for which Goodrich» and not the defendants, had control of the premises, the case is brought within the principle of the cases first above cited.
It differs from the case of Tarry v. Ashton, 1 Q. B. D. 314, where the question was whether the person, who maintained in front of his dwelling-house a hanging lamp which projected over the highway, or the contractor who imperfectly repaired it several months before it fell, was responsible for the injury sustained by the plaintiff on whom it fell. It was there decided that the occupant of the house was liable, on the ground that one who maintains a lamp thus projecting, for his own convenience, is bound so to maintain it that it will not be dangerous to passers by.
Nor is it a case where the owner or occupant of land contracts for the doing of that which is certain to be attended with injurious consequences, if they are not specially guarded against, and is liable if they are not prevented, no matter by whose fault the omission occurs, as in Bower v. Peate, 1 Q. B. D. 321; Homan v. Stanley, 66 Penn. St. 464; Harrison v. Collins, 86 Penn. St. 153.
It is merely a case where the occupant of premises, having the absolute control of them, and having employed a servant to do certain work about them, is liable for the consequences of the servant’s negligence. Judgment on the verdict.
