Wallquist v. Rogers

Braley, J. The plaintiff, the aged mother of the tenant at will and a member of the tenant’s household, was injured by the falling upon her of a marble slab weighing about six hundred pounds, which was in the cellar of the house at the time of the letting. It appears that originally the slab with other slabs had been stored •' on the opposite side of the cellar by the defendant’s father who then owned the premises, which after his death were occupied for some years by the defendant and his mother. And the present tenant is the second lessee after their occupation had terminated. During a period of some fourteen years the slab was moved twice by the defendant’s directions, but it is not shown in whom title vested after the father’s death, and the jury would have been warranted in finding that on the day of the accident the slab was in the same position as it was at the date of the beginning of the tenant’s occupancy. It is plain from the terms of the contract when construed most favorably to the plaintiff that the defendant reserved no right of storage. The tenant was given exclusive possession and control of the premises and the defendant never assumed any obligation to maintain them in a safe condition. While the jury could find that when the tenant spoke to him about the cellar “he told me he would have a man come up and clean it all out for me the next day)” and “that a man came the following day after they had moved in” this was not an undertaking to make the premises safe for the tenant’s use. Nor did the defendant’s promise that he would have the premises “fixed up in perfect condition” amount to an express warranty of safety. Walsh v. Schmidt, 206 Mass. 405. The case at bar does not come within Miles v. Janvrin, 200 Mass. 514, 516, even if it be assumed the jury could have found that the defendant’s servant who [86] cleaned the cellar left the slab in an unsafe condition. Bertie v. Flagg, 161 Mass. 504. The conditions were not concealed and the tenant with a full opportunity for inspection having taken the premises as she found them, the plaintiff has no greater rights. Quinn v. Perham, 151 Mass. 162. Ingalls v. Hobbs, 156 Mass. 348, 350. Cummings v. Ayer, 188 Mass. 292. Conahan v. Fisher, 233 Mass. 234. The verdict for the defendant was ordered rightly. Exceptions overruled.