Murphy v. Cohen

Braley, J. The defendant having introduced no evidence, the jury on the plaintiff’s testimony would have been warranted in finding that, being engaged “in the real estate business,” she "had a prospective tenant who wanted a six room apartment,” and, having been informed that the defendant’s intestate had the number of rooms required, she asked by telephone for permission to let the vacant apartment. The decedent replied that her hus-« band "had charge of the house and referred me [the plaintiff] to him.” A conversation with the husband resulted in his giving the plaintiff permission to rent at a special price, as well as handing to her the keys of the house. We hereafter shall refer to the "prospective tenant” as the tenant. The plaintiff, accompanied by the tenant, thereupon visited the premises where the apartment was inspected. After expressing satisfaction with the rooms the tenant before deciding to rent asked to see the cellar “ that went with the apartment,” and they went down the back stairs to the main landing and small hallway to the cellar door. What followed she described as follows: " I opened the cellar door and looked down the stairs as best I could. It was not very light there but I could see the stairs and they appeared broader to me than they turned out to be. I stepped down with my right foot, on the right side of the first step, in the natural way. . . . There was nothing for my toes to rest upon and I was pitched head first right down into the cellar. I threw up my arms to grasp for the railing, but there was nothing there for me to take hold of, but the both sides of the wall. ... It was not very light in the hall. [56] ... I didn’t stand very long at the top of the cellar stairs, I was anxious to get through, I looked and started down the stairs.” The stairway, on her testimony, was not a pitfall nor out of repair. If it be assumed that the plaintiff was on the premises at the invitation of the defendant’s intestate, who could be found to have known that the apartment which included the cellar would be inspected by the plaintiff and the tenant, there was no duty on his part to warn her of the obvious danger of descending an unfamiliar flight of stairs so dimly lighted that the width of the treads was scarcely visible, without taking the slightest precaution to ascertain the certainty and safety of her footing. Lord v. Sherer Dry Goods Co. 205 Mass. 1, 2, 3. The accident having been due to the plaintiff’s carelessness and not to the breach of any legal duty owed by the intestate, judgment for the defendant on the verdict is to be entered as provided by the terms of the report. So ordered.