Watkins v. Goodall

138 Mass. 533 | Mass. | 1885

W. Allen, J.

The defendant, having let to different tenants the five tenements with a common passageway, was bound to keep the passageway in repair. Looney v. McLean, 129 Mass. 33. But the duty to repair did not include the removal of snow or ice which might accumulate on the passageway, and render the use of it difficult or dangerous. Woods v. Naumkeag Steam Cotton Co. 134 Mass. 357. There is no evidence to sustain the allegation of a breach of the defendant’s duty as landlord to keep the passageway in repair.

The defendant also owed the duty to his tenants who used the passageway under the contract of letting, and to all persons having occasion to use it in connection with the tenements let, not wantonly or negligently to place a dangerous obstruction upon it. His duty to them in respect to the passageway was analogous to his duty to travellers in respect to a highway. See Kirby v. Boylston Market Association, 14 Gray, 249. He is liable for obstructions negligently caused by him, but not for not removing obstructions arising from natural causes, or the acts of other persons, and not constituting a defect in the passageway itself. He would be liable for negligently leaving a coal scuttle in a dangerous position, but not for not removing one so placed by another person.

The conductor and pipes were used in common for the five tenements, and, as regards the obligation to keep them in repair, the defendant was the occupant of them as he was of the passageway. The jury must have found that the pipe was out of repair by the fault of the defendant; and that the want of repair of the pipe occasioned the dangerous accumulation of ice which caused the injury to the plaintiff. To establish the liability of the defendant, it must further appear that he was bound to keep the pipe in repair, so that it would not so discharge water upon the passageway as to make it dangerous. The conductor with which the pipe was connected extended under the eaves of all of the five tenements, and the pipe extended from the conductor through the floor of the passageway and discharged under it. The passageway was uncovered, and, but for the conductor, the dropping from the eaves would have fallen upon it. The-question is not whether the defendant was under any obligation to put the conductor and pipes there, or to take any measures to protect the passageway from water from the eaves; but whether, having placed them there and arranged them so that they would divert the water from its natural course and carry it away from the platform, and having let the tenements in that condition, he was liable for a want of repair in the pipe by which the water was discharged artificially in one place upon the platform so as to make it dangerous when frozen. We think it was an artificial formation of ice, resulting directly from the negligent omission of the defendant, for which he was as much responsible as if he had placed the water there by his voluntary act.

The question whether the plaintiff was in the exercise of due care was.left to the jury, without objection from the defendant; and we cannot say, upon all the circumstances which were before them, that there was no evidence upon which they could pass. Judgment on the verdict.