Negligence, Of one controlling real estate, Contributory. Landlord and Tenant.
In an action by a woman, who occupied with her husband the top floor of a three-story apartment house, against the owner of the house for personal injuries caused by the giving way of a step forming part of a "bulkhead" stair-way leading from the yard of the house to the cellar as a common stairway for the use of all the tenants, it could have been found that the step which gave way was apparently sound, but that the accident disclosed the fact that a bracket on the stringer which supported the step was broken and rotted, that two or three weeks earlier the defendant had been notified that the bottom step was missing and that the bulkhead doors were in a broken condition, allowing the snow and rain to fall on the steps. Held, that there was evidence for the jury of the defendant's negligence.
In the action above described the answer alleged contributory negligence of the plaintiff. Although it appeared that the stairs were in poor condition and often were wet, the plaintiff testified that they looked "all right to go down" and that on this particular day she was using more than the usual amount of care. Held, that it could be found that the defect which caused the plaintiff's injury was not an obvious one and that under St. 1914, c. 553, the question of the plaintiff's negligence was for the jury.
De COURCY, J.
The plaintiff Jennie Oles (herein referred to as the plaintiff) occupied the top floor of a three-story apartment house, as tenant of the defendant. She was injured while descending a "bulkhead" stairway, leading from the yard to the cellar. On the evidence this was a common stairway for the use of all the tenants, and its control remained in the landlord. The defendant consequently owed the plaintiff the duty of using reasonable care to keep it in as safe a condition for its intended use as it was or appeared to be at the beginning of the tenancy. Looney v. McLean, 129 Mass. 33. Andrews v. Williamson, 193 Mass. 92. Ward v. Blouin, 210 Mass. 140. Flanagan v. Welch, 220 Mass. 186.
It could be found that the step which gave way was apparently sound; but the accident disclosed that a bracket on the stringer which supported it was broken and rotted; that two or three weeks earlier the defendant had been notified that the bottom step was missing and that the bulkhead doors were in a broken condition, allowing the snow and rain to fall upon the steps. Without further reciting the testimony in detail, there was evidence for the jury of the defendant's negligence.
The same is true as to the plaintiff's due care. Although the stairs were in poor condition, and often wet, according to her testimony they looked "all right to go down;" and, owing to her physical condition, she was using "more than the usual amount of care on this particular day." The defect which caused her injury was not an obvious one. And she is entitled to the benefit of the due care statute. Stagnaro v. Fitzgerald, 224 Mass. 265. St. 1914, c. 553.
No question of pleading was raised. The action of the plaintiff, and that of her husband for consequential damages, were submitted to the jury rightly. In accordance with the report, the entry in each case must be
Judgment on the verdict.