Palmigiani v. D'Argenio

Braley, J. It having been settled by numerous decisions that because the stairs on which the plaintiff fell were let as part of the tenement to her husband and over which no control was exercised or retained by the defendants, there can be no recovery for personal injuries suffered by the tenant or members of his family unless at the time of the letting the landlord by special agreement undertakes to make repairs either with or without notice, the plaintiff introduced evidence from which the jury could find that the defendants did agree to repair “an alleged existing defective condition on the stairway, and thereafter keep the premises safe during the tenancy.” Fiorntino v. Mason, 233 Mass. 451. Baum v. Ahlborn, 210 Mass. 336, 338. But, the jury having answered in the negative the following question, “Did the defendants agree with the plaintiff’s husband, as a part of the renting of the premises by him, to keep the cellar stairway therein safe at all times during the tenancy, for the use of the tenant and those claiming under him?” the plaintiff’s exceptions are limited to the refusal of the presiding judge to instruct the jury that, “If you believe that the defendants violated the provisions of St. 1907, c. 550, § 127, in failing to maintain these steps in such repair as not to be dangerous, [436] that is evidence of negligence on the part of the defendants. . . . Section 127 . . . provides that owners of structures shall maintain their premises in such repair as not to be dangerous. If you believe that the owners of this building failed to maintain these steps in such repair, that they were dangerous, and the injury to the plaintiff was caused by such failure, your verdict should be for the plaintiff,” and to the instructions which were given on the questions raised by the requests. The statute which consists of one hundred and thirty-four sections is entitled an act relative to the construction and maintenance of buildings in the city of Boston, after creating a department to be called the building department to be under the charge of the street commissioner, prescribes certain requirements for the construction and maintenance, and proper lighting, plumbing and ventilation of all kinds of buildings, both public and private, whether constructed after, or existing at the time of enactment, and imposes a fine “not exceeding five hundred dollars” for any violation of the act. The section in question reads as follows: “Every structure and part thereof and appurtenant thereto shall be maintained in such repair as not to be dangerous. The owner shall be responsible for the maintenance of all buildings and structures. The lessee under a recorded lease shall be deemed the owner under the provisions of this act.” It is plain that there is no express repeal of the rule at common law relating to contracts creating a tenancy at will, under which no liability is imposed on the landowner for obvious defects, or for want of repair, unless he contracts to keep the premises in a safe condition, and to make suitable repairs during the tenancy. Fiorntino v. Mason, 233 Mass. 451. The statute not having attempted to regulate or modify the contractual relations of the parties it should not be broadened, or a construction adopted by implication which would materially limit the rights of parties to enter into such lawful contracts as they please. It would be going far to say that the Legislature intended to do away with fundamental law. Hyatts v. Mechanics’ Mitts, 150 Mass. 190. Barriere v. Depatie, 219 Mass. 33, 35, 36. The requests were denied rightly. It is unnecessary to decide whether under Finnegan v. Winslow Skate Manuf. Co. 189 Mass. 580, Berdos v. Tremont & Suffolk Mitts, [437] 209 Mass. 489, Draper v. Cotting, 231 Mass. 51, 61, 62, and Cussen v. Weeks, 232 Mass. 563, the instructions, that if the jury-found that a special agreement had been established, then “the fact (if it be a fact) that he was violating this statute, that would be evidence as bearing upon the question of negligence and might be considered ... as such evidence” were correct. The question in view of the answer of the jury has ceased to be material. Exceptions overruled.