Sullivan v. Northridge, 250 Mass. 270

Sullivan v. Northridge

250 Mass. 270 | Mass. | 1924

Braley, J.

The plaintiff while in the exercise of due care suffered personal injuries from the fall of a piazza roof connected with a two tenement brick building owned by the defendant’s testator, who died after the first trial, where a verdict in his favor was directed, which was set aside and a new trial ordered in Sullivan v. Northridge, 246 Mass. 382. The plaintiff’s father, of whose family she was a member, hired and occupied the upper tenement, and the jury would have been warranted in finding on the evidence that the fall of the roof was caused solely by the separation of the supporting joists or rafters at the place where they joined the building, and that when examined after the accident the ends of some of the joists appeared to be water soaked and rotten. The premises, including the roof, at the beginning of the tenancy appeared to be in sound condition, but about eight or ten months before the collapse Northridge repaired the entire building. The eaves troughs on the main building, and some eaves troughs between the main roof and the piazza roof, and the water spouts which led from the eaves troughs to the ground were removed and not replaced. The questions, whether the changes caused the roof at the place of the repairs to leak, and whether water percolated or circulated around the joists or rafters where they rested on the building, were for the jury. It also could be found that, if the repairs had been properly made, the joists or rafters would not have decayed, and the roof would not have fallen. The defendant contends that the roof fell because of an unprecedented accumulation of snow and ice which he could not anticipate. The judge submitted this question to the jury under instructions that, if the accident was thus caused, the plaintiff could not recover. Salisbury *274v. Herchenroder, 106 Mass. 458. It does not appear that Northridge had agreed with the tenant to make repairs, and as the judge instructed the jury in accordance with the defendant’s second and third requests, there being no evidence of gross negligence, the plaintiff could not recover unless the piazza roof was in his possession and control, and a verdict for the defendant was ordered on the second count of the declaration. Bergeron v. Forest, 233 Mass. 392. Sullivan v. Northridge, supra. The plaintiff in the first count, and in her answer to the defendant’s sixteenth interrogatory, rested her right of recovery on this ground. As said by Mr. Justice DeCourcy in Sullivan v. Northridge, supra, “ The controlling question in the case is whether this piazza roof was included in the premises let to the second floor tenant, or whether the defendant retained the control, and consequently owed the plaintiff, as a member of the tenant’s family, the duty of using reasonable care to keep it in such condition as it apparently was in at the time of the letting, as in the case of common entrances, halls and stairways.” The evidence was conflicting. But, if the jury believed the plaintiff’s witnesses, the main roof which was distinct from the piazza roof overhung the piazza roof twelve or eighteen inches, and “ the piazza roof carried water off the top piazza, and . . . shed the water from the lower piazza.” They could further find that the piazza roof in question was controlled by Northridge for the benefit of his several tenants. Sullivan v. Northridge, supra. The motion for a directed verdict was denied rightly.

The sixth request, that “ The only evidence of the negligence of the defendant is the fact that he took down a water spout and eaves trough on or near the piazza roof some eight or ten months before the accident and in order for the plaintiff to recover the jury must find from a preponderance of the evidence that the taking down of the eaves trough and water spout caused the wood of the roof to become rotten so that it fell because of such rotten condition and that this rot developed between the time of the taking down of the eaves trough and water spout and the time of the falling of the piazza roof,” was sufficiently covered by the instructions.

*275The defendant also excepted to the ruling relating to the duty of the landlord to make repairs. It is contended that the instruction, “And while the landlord is not required to make repairs unless the contract required him to do so, yet nevertheless, if he undertakes and does make repairs and does it in a careless manner, unskilful work, or in any way did that which might be deemed negligent, then he is hable for the repairs he made if it results in injury to another,” was misleading and erroneous. If it is treated separately and confined to the tenement let to the plaintiff’s father it was erroneous, for reasons previously stated. It should not however be separated from the context. Adams v. Nantucket, 11 Allen, 203. Connors Brothers Co. v. Sullivan, 220 Mass. 600, 607. Draper v. Cotting, 231 Mass. 51, 65. Cronin v. Boston Elevated Railway, 233 Mass. 243, 246. The judge said in the paragraphs immediately preceding where he referred to the retention of control by Northridge, “ This case involves a question of the defendant’s duty to the tenants, the Sullivans, and members of the families, in the two tenement building. Did Mr. Northridge retain in himself the control of any portion of the building? It has been argued upon the testimony . . . that the landlord did not retain control of any part of the premises. ... If that piazza roof was singly and solely ... a roof only to the upper part of the piazza, then the defendant would not be liable. The plaintiff contends, and it is for you to say whether or not the roof of that piazza served the purpose of being a roof of both piazzas .... Was it in control of the owner of the property, the defendant here ? Whether or nor he [the landlord] withheld or reserved control of any portion' of the building, is largely a question of fact. It may not be pronounced by the court as a matter of law; but whether or not, he reserved control and acted as if he had control, and that his conduct showed that he treated it as in his custody is for the jury to determine. Did the defendant Northridge make repair to the roof?” The instructions excepted to are to be read not only with the quoted context but with the instruction given at the close, that “if the jury find that the roof which, fell ... is a protection for the upper *276piazza only then the plaintiff can recover only upon proof that the defendant’s servant or agent was guilty of gross negligence in the repairing of said roof. . . . There is no evidence of gross negligence in the case as I observe it and I so rule.” If so construed they were neither misleading nor inconsistent. Adams v. Nantucket, supra. Connors Brothers Co. v. Sullivan, supra. Sayles v. Quinn, 196 Mass. 492, 496. The jury were plainly told, that the plaintiff on whom the burden of proof rested, could not recover unless North-ridge retained control of the upper piazza, and it collapsed because the repairs were negligently made.

The exceptions to the admission of evidence not having been argued are treated as waived.

Exceptions overruled.