Callahan v. Dickson

Sheldon, J. The jury could find that the defendant leased the tenement on Union Place to the plaintiff’s father, with the [515] right to use that passageway as the sole approach to and from the tenement, that the passageway remained in the sole control and charge of the defendant, and that she assumed the duty of keeping it and the board walk which ran through it in as good condition for the use of the father and his family as at the time of the letting. Faxon v. Butler, 206 Mass. 500. Miles v. Janvrin, 200 Mass. 514. Domenicis v. Fleisher, 195 Mass. 281. Andrews v. Williamson, 193 Mass. 92. Leydecker v. Brintnall, 158 Mass. 292. There was also evidence that the defendant recognized this duty (Nash v. Webber, 204 Mass. 419, 425), and caused some repairs to be made on the walk or a new walk to be laid down, whether before or after the letting to the plaintiff’s father may not be wholly clear on the evidence. There was evidence also that since the letting the walk was allowed to become defective and dangerous, in such a manner as to warrant an inference of negligence on the part of the defendant. And there was evidence of due care on the part of the plaintiff. Her previous knowledge of the defect was a circumstance to be considered, but it was not conclusive against her as matter of law, though the jury might have found it to be so in fact. Page v. Weymouth, 207 Mass. 325. Frost v. McCarthy, 200 Mass. 445, 448. For the same reasons it could not be ruled that she had assumed the risk of injury from the defect even if this defense was open under the answer. It follows that each one of the defendant’s requests was rightly refused. A different question would have been presented if it had appeared that this passageway, though a private way, had been wrought into the similitude of a public street, and if there had not been evidence that the defendant had assumed a duty in regard to it. We express no opinion upon such a question. Exceptions overruled.