McGowan v. Monahan

Loring, J. The most that the jury were warranted in finding was that the plaintiff tripped and fell over an ordinary mat in front of the defendant’s outer door as she was going down stairs in the dark hours of the morning, through the unlighted common passageway of the tenement house in question. The plaintiff was the lessee of the tenement next above that occupied by the defendant. The defendant was the owner of [298] the building and the plaintiff’s landlord as well as the. occupant of the tenement next below that of the plaintiff. It should be added that it could have been found that the mat had been put in front of the defendant’s door the night before, without warning having been given of its presence, and that the space between the outer side of the mat and the banisters on the edge of the landing was not a wide one. How narrow it was did not appear. Neither did it appear how the plaintiff happened to trip. All that appeared in addition was that the plaintiff was allowed to testify without objection that her daughter examined the mat immediately after the accident and said that it “was turned out of place.” • We do not think that the ruling can be justified on the ground that there was no evidence that the defendant placed the mat or caused it to be placed in front of his outer door. The mat was spoken of by the plaintiff as the defendant’s mat without objection on his part. The fact that it was his mat, coupled with the fact that it was in front of his outer door, warranted the finding that he put it there or caused it to be put there. There was no evidence of an agreement on the part of the defendant to light the common passageways. In the absence of such an agreement the defendant’s duty to the plaintiff consisted in keeping the common passageway in the condition it was in, or apparently in, at the date of the lease of the plaintiff’s tenement to her. See in this connection Miles v. Janvrin, 196 Mass. 431; Andrews v. Williamson, 193 Mass. 92; Miller v. Hancock, [1893] 2 Q. B. 177. The plaintiff cannot complain that the passageway was dark at the time of the accident. Jordan v. Sullivan, 181 Mass. 348. Dean v. Murphy, 169 Mass. 413. The case at bar therefore resolves itself into the question whether it is an act of negligence to put an ordinary mat before the outer door of a tenement, on a narrow landing which is part of a common passageway, where, by the terms of the contract under which the plaintiff used that common passageway, it was not to be lighted throughout the night. Placing a mat in a common passageway before the outer door of a tenement leading out of it is as matter of common experience usual and ordinary and is a thing which all using the passageway must be taken to expect, and no warning is necessary when it is first done. In [299] principle the question is not unlike that decided in Jennings v. Tompkins, 180 Mass. 302. The case of Toland v. Paine Furniture Co. 179 Mass. 501, is much relied on by the plaintiff. But there the plaintiff was invited on the defendant’s premises on business. In such a case the defendant was bound to make them safe by lighting them properly, and there was evidence that they were not properly lighted. Further, there was evidence in that case that the rubber mat over which the plaintiff tripped was curled up on the edge where she tripped, and nailed down on each side, making the place an unsafe one. jExceptions overruled.