258 Mass. 188 | Mass. | 1927
The plaintiff, a child eighteen months old, living with his parents in a tenement owned by the defendants and rented by his mother Mrs. Grace Withington, suffered physical injuries on June 7, 1923, which are alleged to have been caused by the defendants’ negligence. The plaintiff, being too young to care for himself, was in the custody of his mother whose evidence tended to show that she had gone to the roof to take in some clothes, leaving the plaintiff in the living room where there was a closed window, which the jury could find was more or less broken and decayed. Upon her immediate return, she discovered his absence, that the window was broken, and that the plaintiff was lying on the ground below. The question of her due care was for the jury. Grant v. Fitchburg, 160 Mass. 16.
There was testimony warranting the jury in finding that when Mrs. Withington, intending to rent the tenement, called on the defendants’ agent on November 3,1922, it was being repaired, and that he told her repairs were under way, and “the tenement was being fixed up in first class condition.” At a later interview, he told her it was “all right to move into.” Belying on these representations, she paid one month’s rent and received the key. The next day, upon moving in, she found the conditions were not as represented, and at once informed Abraham I. Borne, hereinafter referred to as the defendant, “that the house was not finished; that it was not fixed up as she hired it,” and that “she would not stay.” A further finding also was warranted that she never agreed to rent the tenement as she found it on inspection. It was
But the questions, whether the plaintiff came in contact with the window or its condition caused his fall is left wholly to conjecture, and no causal connection between the accident and the conduct of the defendant is shown.
Exceptions overruled.