Personal Injuries — Negligence — Action against Landlord by Visitor of Tenant — Condition of Way. An action cannot be maintained against a landlord for personal injuries occasioned to a visitor of one of the tenants by falling into an opening or cellar way while passing along a walk separating the two rows of tenements, if the walk was in good repair and in the same condition in which it was when the tenant hired his tenement, and the danger arising from the proximity of the opening was not concealed but apparent. The plaintiff being the guest of the tenant and using the walk under his authority had no greater claim to protection than he had.
HAMMOND, J.
The walk was in good repair, and in the same condition in which it was when Grady hired his tenement. If it was dangerous at all to a person in the exercise of due care, the danger arose out of its original construction and not from lack of repair. The danger arising from the proximity of the basement entrance was not concealed, but was apparent. Nor was the entrance a trap or pitfall. Hutchinson v. Cummings, 156 Mass. 329, 330. Everything was plainly visible and in the same condition as when hired.
Grady got and had the benefit of the tenement he hired, including its approaches, and had no right to insist on anything better. His rent must be assumed to have been gauged in accordance with the thing he hired and its condition at the time.
The case is plainly distinguishable from the cases where the landlord has been guilty of negligence respecting the repair of a common stairway or other part of a building used in common and remaining under his control, as in Looney v. McLean, 129 Mass. 33, and Wilcox v. Zane, 167 Mass. 302; and also from the cases where parts of a building are let to separate tenants for business purposes, and persons call upon the tenants upon business of mutual interest to the caller and the tenant, as in Marwedel v. Cook, 154 Mass. 235. Neither Grady nor any member of his family, nor any of his house servants, if injured by a similar accident, could have maintained such an action against the defendant for the injury. Quinn v. Perham, 151 Mass. 162. Moynihan v. Allyn, 162 Mass. 270, and cases therein cited. Freeman v. Hunnewell, 163 Mass. 210.
The plaintiff was using the walk as the invited guest of Grady, under his authority and in the exercise of his right, and while she was thus using it the defendant's duty to her was no greater than that which he owed to Grady. See Coupe v. Platt, 172 Mass. 458; Plummer v. Dill, 156 Mass. 426.
Exceptions overruled.