Harrinson v. Jelly

Hammond, J. The evidence upon several vital points was conflicting, but it was the province of the jury to find where the truth lay, and without reciting it in detail we think the jury would have been warranted in finding that the stairway was constructed for the use in common of the persons who worked in that part of the building in which the plaintiff worked, and that [293] the plaintiff had been so informed by the authority of the defendant ; that at the time of the accident the plaintiff was rightfully passing over it and in the exercise of due care; that the stairway was not in existence at the time the plaintiff or Cohen his employer, who was a tenant of the defendant, first began to occupy the building, but was constructed several months after-wards and some weeks prior to the accident; that at the time of the accident it was in a defective condition, and that the accident was due to this condition; that it was a part of the building in which the tenants had only a right of passage in common, and that the control of it was retained by the defendant; that the defendant knew or ought to have known of the defective condition in time to repair, and that his failure to repair was negligence. If such are the facts, then the case is well within the principles laid down in Looney v. McLean, 129 Mass. 33, and several subsequent similar cases, and the defendant may be held answerable. Exceptions sustained.