Wilcox v. Zane

Knowltoe, J. The evidence tended to show that the roof where the plaintiff was injured was retained in the possession of the defendant as a place to be used in common by his tenants in the building for hanging clothes to dry, and for other uses to which the yard of a dwelling-house is commonly put. It was, therefore, his duty to keep it in a reasonably safe condition for the uses for which it was intended. Looney v. McLean, 129 Mass. 33. Watkins v. Goodall, 138 Mass. 533. Marwedel v. Cook, 154 Mass. 235. Miller v. Hancock, [1893] 2 Q. B. 177. The plaintiff was a boarder with Mrs. Pray, one of the defendant’s tenants, who, by contract with the defendant’s agent, had a right to use the roof in common with others. At Mrs. Pray’s request she went upon the roof to do work for Mrs. Pray, which she had a right to do there under her contract with the defendant. Although she was working gratuitously, she was in a sense a servant or agent of Mrs. Pra3r, and she went upon the roof in Mrs. Pray’s right. Barstow v. Old Colony Railroad, 143 Mass. 535, 536. The use which the tenants might make of the roof was not limited to working there in person. The implied invitation growing out of the defendant’s contract extended to the agents and servants of the tenants, who went upon the roof to do work which the tenants were authorized to do there. The defendant had an interest in the use to which the roof was being put, for he received pa3T from his tenants for the privilege of so using it. Upon the evidence in this case the defendant owed the plaintiff the same duty to have the roof reasonably safe at the time of the accident that he owed to Mrs. Pray. Plummer v. Dill, 156 Mass. 426. Hart v. Cole, 156 Mass. 475. There was evidence from which the jury might have found that he failed in the performance of this duty. It is clear that it was not necessary to have a very strong floor, for if one broke 307 through it his foot could not descend more than about four inches before it would be stopped by the roof below. As the danger of injury was small if a board broke, a greater risk of breaking was allowable than if a break would be likely to be attended by serious consequences. But there was evidence that the board which broke was badly decayed, and was cross-grained and knotty, and that no repairs had been made on the roof for more than two years. We think that the pieces of broken board which were in evidence, the photographs, and the testimony of the witnesses, presented a question for the jury on this branch of the case. We cannot say, as matter of law, that there was no evidence that the plaintiff was in the exercise of due care. She testified that she had never noticed the dangerous condition of the roof at the place of the accident, and she was in the performance of her duty in the usual way. She had no such duty to observe the condition of the roof in regard to safety as the defendant had. Exceptions sustained.