Blaufarb v. Drooker

Braley, J. It was undisputed that the defendant was the owner of the premises and retained possession and control of the passageway where the plaintiff was injured while visiting by invitation one Mrs. Hoffman, a tenant of the defendant, whose apartment was on the first floor of the building. The plaintiff, whose due care is not in question, entered it at five o’clock in the afternoon of a December day. On her evidence, the defendant introducing no evidence, it could be found that there was a long entry leading from Mrs. Hoffman’s kitchen to an inner door which swung outward upon a short hallway without windows, where there were four or five steps about four feet wide leading to another door opening upon a sidewalk. The small hallway between the doors was so dark that she could not see her way as she came out of the apartment, and the light in the long hallway did not reach the flight of steps where the accident happened. The first door to which she came, leading to the short flight of steps, was closed as well as the street door. Upon coming to the first door, she tried to open it with her right hand, and with her left hand holding the door, started to walk with one foot, and then the other foot. “ It was slippery and dark and she could not see,” and “ fell head first, striking her head and back.” There was no light “ and she did not [204] know of any other way to get out of the premises other than through the front door.” The evidence tended to support the declaration which alleged “that on the first floor of the said premises is a narrow entry or passageway, leading to a certain stairway, which stairway descends to door of said building, in the front; that the entry, or passageway, and stairway is provided by the defendant for the use of the tenants, their guests and visitors, to be used by them as incident to the occupation of said premises; that said defendant has the exclusive control of the said entry or passageway and stairway, and is bound to maintain and keep same in good condition; that said entry or passageway and stairway were improperly lighted, narrow, abrupt and dangerous; that the said defendant failed and unreasonably neglected to render the same safe for the use of the said tenants, their guests and visitors; . . . ” The jury could find that the little hall which the plaintiff described was unlighted, and the question whether, if it had been lighted, the accident would have happened, also was one of fact. But the plaintiff had no greater rights in the use of the premises than the tenant, to whom the defendant owed no duty except to maintain the entry and stairs in the same condition they were in at the date of letting. In the absence of evidence that the little hallway or entry was lighted when the tenancy began, the failure of the defendant thereafter to light it, or to reconstruct the stairs, furnishes no proof of negligence. Marley v. Wheelwright, 172 Mass. 530. Jordan v. Sullivan, 181 Mass. 348. Taylor v. Finnigan, 189 Mass. 568. Faxon v. Butler, 206 Mass. 500. Polansky v. Heller, 241 Mass. 484. The plaintiff however having failed to establish a cause of action, offered at the close of the evidence to prove, that when Mrs. Hoffman became a tenant there was a gas jet in the hallway and gas fixtures in the entryway between the doors where the plaintiff was inj ured, and that after the defendant became the owner he removed them under an agreement that in consideration of a reduction of rent Mrs. Hoffman was to place a lantern in the large hallway; and on the [205] night in question it had been turned so low that it did not illuminate the small entryway. But under this agreement Mrs. Hoffman was not the defendant’s agent; she still was his tenant. If the little entry had become unsafe for want of sufficient light, and she, in using it, had been injured, the modified contract of rental was the contract under which she occupied, and there could have been no recovery. The plaintiff is in no better position, for reasons previously stated. The plaintiff further offered to show, that when the defendant became the owner, the stairs had become so worn that he made • repairs, and the steps “ were worn where people walked upon them, so that there were ridges in them.” But this ground of liability was not open under the declaration. The allegation that the stairway and passage “ were improperly lighted, narrow, abrupt and dangerous,” on which the plaintiff relies in argument, does not cover an allegation that the stairs where the plaintiff fell had become unsafe for want of suitable repair which it was the duty of the defendant to make. The offers of proof were rightly éxcluded and the denial of the plaintiff’s motion to amend her declaration by filing a substitute declaration raises no question of law. She was given the option to amend with a continuance of the case, because the defendant’s counsel was not prepared to meet this new issue, or to abide by the original declaration, and, having elected to go to the jury, the judge properly ordered a verdict for the defendant. Exceptions overruled.