Woods v. Naumkeag Steam Cotton Co.

134 Mass. 357 | Mass. | 1883

Field, J.

The plaintiff was a tenant at will, or the wife of a tenant at will, of the defendant, and she used the steps in passing from the tenement occupied by her to the street, not by the invitation of the defendant, but in the exercise of her right to use the passageway in common with others for the purpose of entering and leaving the premises let to her or to her husband. If she were the sole tenant of the house and the yard, including the steps, the defendant would not be liable in this case. A tenant who hires premises takes them as they are, and cannot complain that they were not constructed differently. Dutton v. Gerrish, 9 Cush. 89. Royce v. Guggenheim, 106 Mass. 201, 202.

There may be cases in which the landlord is liable to the tenant for injuries received from secret defects, which are known to the landlord and are concealed from the tenant, but this case discloses no such defects in the steps. Minor v. Sharon, 112 Mass. 477.

When, different parts of a building are let to different tenants, with the right in the tenants of using in common the approaches and passageways, which are not let, but remain in the possession of the landlord, the landlord as owner and occupant is held liable to strangers who are rightfully using these passageways for all injuries received from defects in the construction, or from want of repair of the passageways. Readman v. Conway, 126 Mass. 374.

In Looney v. McLean, 129 Mass. 33, 35, the court say, that “ where a portion of a building is let, and the tenant has rights of passageway over staircases and entries in common with the landlord and the other tenants, there is no such leasing as will exonerate the landlord from all responsibility for the safe condition of that portion of which he still retains control, and which he is bound to keep in repair; as to such portion, he still retains the responsibilities of a general owner to all persons, including the tenants of his building.” In that case, the injury was received “in consequence of the giving way of one of the steps of the staircase.” The court also say, that “the jury, under the instructions given, have found that she was injured, without fault on her part, while using a defective stairway apparently intended to furnish access to the roof of a shed used in common by the other tenants for drying clothes; ” “ and that there was nothing in their appearance which would indicate to a prudent person that they were unsafe.” The case finds that “ it was admitted that the defendant knew that the stairs were greatly decayed and unsafe.” The defect there was that the steps had become unsafe by decay, and this defect was not apparent, was known to the defendant, and the plaintiff was not in fault. See Ivay v. Hedges, 9 Q. B. D. 80.

The case did not call for the determination of the question whether the liability of the landlord is in all respects the same to his tenants as to other persons for injuries received from defects in passageways which are used in common by the tenants, but over which the landlord retains control. It is the general rule that, when a person has a right of way over the land of another, the owner of the soil is not bound to keep the way in repair for the owner of the way, although the owner of the soil has no right to obstruct the way, or to dig pitfalls in it, and is liable for any defects in the way which he has caused. When the passageways are of artificial construction, as, for example, the halls and staircases of a house, and the owner lets part of the premises with the right in the tenants to use the passageways in common with others, it may be that there is an obligation on the owner to keep the ways in such a condition that they can be safely used by the tenants; but this obligation has never been extended so as to require a reconstruction of the ways on a different plan, if the ways as they existed when the premises were hired were not altogether convenient or safe by reason of some fault in the original plan which was apparent.

In the case at bar, there was no duty on the part of the defendant to the plaintiff to remove from the steps the ice and snow which naturally accumulated thereon. That was the tenant’s duty, if she desired to use the steps. The ice and snow were the proximate cause of the injury.

The exceptions state that no railing had ever been placed on either side of the steps, that the jury viewed the premises, and that it was contended “that the steps were of such material, and constructed in such manner, that they occasioned the accumulation of ice and snow thereon improperly.” The steps were of rough-split, unhewn granite, and “ the structure of the steps remained unchanged from the time of the plaintiff’s first occupancy of the tenement to the time she received her injury.” The defendant was under no obligation to change the original construction of the steps for the benefit of the tenant.

Judgment on the verdict.