248 Mass. 542 | Mass. | 1924
It appeared from the undisputed evidence that the building owned by the defendant, in which the accident occurred, consisted of a store on the lower or street floor, with separate tenements on the three floors above. At each landing leading to the tenements there was a platform with a railing on the front side of the stairway, running from the side of the building to the stairway post. The railing had a top, and lower stringer connected at intervals by vertical slats. The third or middle tenement was let to Mrs. Stravinsky, hereafter referred to as the tenant, from whom the plaintiff hired a lodging room, and with whom he boarded. It also is stated that the tenant “ had no rights in the tenements above or below,” and " that nobody had any right or occasion to use the stairs going from the middle landing ... to the tenement above except the tenants of the upper or top floor; that the stairs were for the exclusive use of the tenants of the upper or top floor and their visitors.” The exceptions also recite that, " The stairs going to the tenement above were for the exclusive use of the tenants of the upper floor and their visitors,” and that the "jury took a view.”. We consider however in this connection, and the photograph of the premises offered in evidence at the trial, and exhibited to us at the argument, and the evidence of one Lawton on which the jury could find, that the middle tenement had
The defendant’s first contention, is, that the platform in question was part of the tenement over which he retained no control, and his motion for a directed verdict should have been granted. But on the evidence, the jury were warranted in finding, that the stairway was a common stairway for the use of tenants, no part of which was let to the tenant. It accordingly was his duty to use reasonable care to keep it in as safe a condition as it was, or appeared to be at the beginning of her tenancy, and without further comment, there was evidence for the jury of the defendant’s negligence. Grella v. Lewis Wharf Co. 211 Mass. 54. Flanagan v. Welch, 220 Mass. 186. Oles v. Dubinsky, 231 Mass. 447. Kirby v. Tirrell, 236 Mass. 170. Lindsey v. Leighton, 150 Mass. 285, 288.
The defendant’s second contention, is, that at the time of the accident the plaintiff was not using the platform as a common passageway, and-the judge should have so ruled. There was evidence that on the day of the accident, the plaintiff, whose due care is not questioned, had dinner “ about twelve o’clock,” and after dinner he went out on to the platform where there were two chairs, and with a companion sat there and talked. His companion went to work and the plaintiff “ got up and went into the house ” to dress and get “ ready to go to work. . . . A woman told him to go out and see how the children were in the yard, and he went out there to see,” and “ when he went out the second time he put his hand on that railing there, and that when he did that, it gave way, and he fell headlong ” to the
The case was properly submitted to the jury, and no error of law having been shown in any of the rulings complained of, the exceptions must be overruled.
So ordered.