Taylor v. Loring

Knowlton, C. J. The defendants are the owners of a building on Bedford Street in Boston, including the numbers from [284] 114 to 128 on the street. At number 128 is a tenement occupied by the Buildings Care Company, consisting of an office on the first floor and a basement. The floor of this office is about on a level with the sidewalk, and the entrance is through a vestibule, wholly within the line of the building, extending about nine feet on the line of the street, and being about four feet deep. From the middle of it a door of ordinary width opens into the office, and at the left hand side of the door, as one enters, there was, at the time of the accident to the plaintiff, a trap door that could be raised on hinges and opened back against the wall of the office, but which was closed at the time of the accident. In this trap door, near its rear left hand corner, was a smaller opening about a foot square, which was intended to be used as a ventilator for the basement below, and the cover of this also was hung on hinges, so that it could be lifted up with the opening towards the interior of the building. There was evidence that it could be opened only so as to stand up on its. hinges, but one witness testified that the cover could be laid over back upon the floor of the vestibule. On the opposite side of the door, near the right hand corner of the vestibule, there was another similar small cover opening on hinges, which had no connection with the accident. The whole floor of the vestibule and of the coverings was made of round translucent glass laid in cement, to light the basement below. The trap door and the coverings to these openings, when in place, made a perfect, smooth floor in the vestibule, and they were in perfect condition. While the cover of the left hand small opening was285 open to ventilate the basement, the plaintiff, under circumstances which were in dispute as affecting her care, stepped into the opening and hurt herself. The premises were in the occupation of the Buildings Care Company under a written lease in which they covenanted to keep the premises in good repair and condition. The vestibule was constructed by the defendants before the tenants entered under this lease. The defendants had nothing to do with the care and management of the premises at the time of the accident. The only ground for a contention that they were liable for the accident is that the mode of construction of the vestibule made it a nuisance by reason of the use for which it was intended and to which it was put by the tenants in accordance with the plan and purpose of the defendants when they executed the lease. Clifford v. Atlantic Cotton Mills, 146 Mass. 47. Caldwell v. Slade, 156 Mass. 84. Mellen v. Morrill, 126 Mass. 545. Frischberg v. Hurter, 178 Mass. 22. But there was no evidence on which such a fact could be found. The opening did not lie in the line of travel to the doorway or to any other point which persons had occasion to approach. It was in a corner where no one had any occasion to go. Moreover, when it was open, it was in a well lighted place where a person using due care could hardly fail to see it. If at any time there were conditions which made it dangerous, the defendants had a right to assume that the tenants would use it in such a way as would be safe, either by keeping it closed, or putting a barrier before it, or would otherwise protect those who might be in danger from it. The defendants had no reason to expect such a use of the premises by the tenants as would make the vestibule a nuisance or expose to danger persons lawfully using the premises. Exceptions overruled.