201 Mass. 283 | Mass. | 1909
The defendants are the owners of a building on Bedford Street in Boston, including the numbers from
corner, was a smaller opening about a foot square, which was intended to be used as a ventilator for the basement below, and the cover of this also was hung on hinges, so that it could be lifted up with the opening towards the interior of the building. There was evidence that it could be opened only so as to stand up on its. hinges, but one witness testified that the cover could be laid over back upon the floor of the vestibule. On the opposite side of the door, near the right hand corner of the vestibule, there was another similar small cover opening on hinges, which had no connection with the accident. The whole floor of the vestibule and of the coverings was made of round translucent glass laid in cement, to light the basement below. The trap door and the coverings to these openings, when in place, made a perfect, smooth floor in the vestibule, and they were in perfect condition. While the cover of the left hand small opening was-
The defendants had nothing to do with the care and management of the premises at the time of the accident. The only ground for a contention that they were liable for the accident is that the mode of construction of the vestibule made it a nuisance by reason of the use for which it was intended and to which it was put by the tenants in accordance with the plan and purpose of the defendants when they executed the lease. Clifford v. Atlantic Cotton Mills, 146 Mass. 47. Caldwell v. Slade, 156 Mass. 84. Mellen v. Morrill, 126 Mass. 545. Frischberg v. Hurter, 178 Mass. 22. But there was no evidence on which such a fact could be found. The opening did not lie in the line of travel to the doorway or to any other point which persons had occasion to approach. It was in a corner where no one had any occasion to go. Moreover, when it was open, it was in a well lighted place where a person using due care could hardly fail to see it. If at any time there were conditions which made it dangerous, the defendants had a right to assume that the tenants would use it in such a way as would be safe, either by keeping it closed, or putting a barrier before it, or would otherwise protect those who might be in danger from it. The defendants had no reason to expect such a use of the premises by the tenants as would make the vestibule a nuisance or expose to danger persons lawfully using the premises.
Exceptions overruled.