Urserleo v. Rosengard

Braley, J. It appeared from the undisputed evidence that the building owned by the defendant, in which the accident occurred, consisted of a store on the lower or street floor, with separate tenements on the three floors above. At each landing leading to the tenements there was a platform with a railing on the front side of the stairway, running from the side of the building to the stairway post. The railing had a top, and lower stringer connected at intervals by vertical slats. The third or middle tenement was let to Mrs. Stravinsky, hereafter referred to as the tenant, from whom the plaintiff hired a lodging room, and with whom he boarded. It also is stated that the tenant “ had no rights in the tenements above or below,” and " that nobody had any right or occasion to use the stairs going from the middle landing ... to the tenement above except the tenants of the upper or top floor; that the stairs were for the exclusive use of the tenants of the upper or top floor and their visitors.” The exceptions also recite that, " The stairs going to the tenement above were for the exclusive use of the tenants of the upper floor and their visitors,” and that the "jury took a view.”. We consider however in this connection, and the photograph of the premises offered in evidence at the trial, and exhibited to us at the argument, and the evidence of one Lawton on which the jury could find, that the middle tenement had [544] no means of entrance except by the stairway, which had a recessed entrance from the street. The jury further could find on conflicting evidence, that the rail at the middle landing “ was a little away from the house,” had been “ tied with a rope,” and that there were “ two or three sticks out,” and “ that the rail was decayed and rotten at each end.” It also could be found that before the accident, the •defendant, on being asked by the tenant “to fix the fence before the children fell down, . . . made an obscene reply,” and that the condition described had existed for a period of three or four weeks before the plaintiff was injured. The defendant’s first contention, is, that the platform in question was part of the tenement over which he retained no control, and his motion for a directed verdict should have been granted. But on the evidence, the jury were warranted in finding, that the stairway was a common stairway for the use of tenants, no part of which was let to the tenant. It accordingly was his duty to use reasonable care to keep it in as safe a condition as it was, or appeared to be at the beginning of her tenancy, and without further comment, there was evidence for the jury of the defendant’s negligence. Grella v. Lewis Wharf Co. 211 Mass. 54. Flanagan v. Welch, 220 Mass. 186. Oles v. Dubinsky, 231 Mass. 447. Kirby v. Tirrell, 236 Mass. 170. Lindsey v. Leighton, 150 Mass. 285, 288. The defendant’s second contention, is, that at the time of the accident the plaintiff was not using the platform as a common passageway, and-the judge should have so ruled. There was evidence that on the day of the accident, the plaintiff, whose due care is not questioned, had dinner “ about twelve o’clock,” and after dinner he went out on to the platform where there were two chairs, and with a companion sat there and talked. His companion went to work and the plaintiff “ got up and went into the house ” to dress and get “ ready to go to work. . . . A woman told him to go out and see how the children were in the yard, and he went out there to see,” and “ when he went out the second time he put his hand on that railing there, and that when he did that, it gave way, and he fell headlong ” to the [545] ground. The plaintiff was not a licensee or trespasser. It is settled, that where as in the case at bar a tenant has rights of passage over a stairway in common with the landlord and other tenants, the landlord is bound to keep the passageway over which he still retains control in a reasonably safe condition not only for the use of the tenant, but also of the tenant’s boarders, or lodgers. Coupe v. Platt, 172 Mass. 458, 459. Marley v. Wheelwright, 172 Mass. 530. Gallagher v. Murphy, 221 Mass. 363. Alessi v. Fitzgerald, 217 Mass. 576. If the tenant had gone upon the platform to see “ how the children were in the yard,” such use the jury could say would have been a necessary and reasonable use of the platform in connection with the tenement occupied by herself and family, and which would not be inconsistent with the rights of other tenants. Kent v. Todd, 144 Mass. 478, 488. The plaintiff therefore could use the platform for the purpose described, under the authority of the tenant, and in her right. Alessi v. Fitzgerald, supra. The case was properly submitted to the jury, and no error of law having been shown in any of the rulings complained of, the exceptions must be overruled. So ordered.