Negligence, Of one controlling real estate. In an action for injuries sustained from being struck by a board falling from the roof of an unoccupied house owned and controlled by the defendant while the plaintiff was walking near it on the highway, where there is evidence of the dilapidated condition of the house and of the rottenness of the board that fell from the roof upon the plaintiff and also of the defendant's failure to attend to the house or to make any repairs upon it, the question of the negligence of the defendant is for the jury.
In an action for an injury to a traveller upon a highway by reason of a rotten board falling upon him from the roof of an unoccupied and neglected house owned and controlled by the defendant, it is proper for the presiding judge to refuse to make a ruling which correctly states the obligation of a landlord to a tenant but has no application to the case on trial.
RUGG, C.J.
This is an action of tort in which the plaintiff seeks to recover compensation for injuries sustained by him while a traveller upon a public way from boards falling from a house owned by the defendant. The charge of the Superior Court was in general in accordance with Ainsworth v. Lakin, 180 Mass. 397, portions of the opinion being read to the jury. The only questions arise from the refusal of the trial judge to give rulings requested.
1. The request to direct a verdict for the defendant was denied rightly. Evidence as to the dilapidated appearance of the house, the falling of the boards and their condition, the lack of attention of the defendant to the house and all the other attendant facts raised a question for the jury as to the negligence of the defendant.
2. While the request to the effect that if there was a hidden defect in the board which caused the injury or in its attachment to the building it must appear that the defendant either knew or ought to have known of the existing danger, is a correct statement of the obligation of a landlord to a tenant (Shute v. Bills, 191 Mass. 433), there was nothing in the case at bar which called for the application of this rule.
3. There was evidence tending to show that on a Saturday afternoon early in February, 1909, the accident having occurred on February 10, some boys were seen on the roof of the defendant's house stripping up boards such as injured the plaintiff and that at the hour of the accident the wind was blowing a gale.
In this connection the request was made to instruct the jury that if the condition of a structure has been rendered dangerous by vis major or the act of a third person, which the owner had no reason to anticipate, he cannot be held liable for the injury or be bound to make the structure safe until he has had a reasonable time after it has become dangerous to take necessary precautions to prevent injury. This is the law. Mahoney v. Libbey, 123 Mass. 20. There was evidence to which it was applicable. The rule given upon this branch of the case, although not in the language of the request, stated the principle with sufficient amplification and illustration to protect the rights of the defendant. The vis major upon which the defendant relied was the gale operating directly and immediately to cause the injury and not rendering the building so unsafe as to require repair. Therefore, the duty resting upon the defendant was one of previous reasonable inspection, so far as common prudence under all the circumstances required it, to see that the condition of the roof was such as not likely to cause harm to passers-by. As to the intervening tortious act of third persons causing the dangerous condition, the rule was stated with accuracy.
Exceptions overruled.