Landlord and Tenant. Negligence, Of one owning real estate, In use of gas. Although a landlord who orally has let an apartment to a tenant is not obliged to put it in tenantable condition and may repudiate before performance a promise which after the letting he has made to that effect, if he goes ahead and by his servants or agents carries out such a promise, he is liable for damages resulting from negligence on the part of his servants or agents in so doing.
At the trial of an action against a landlord by a tenant of an apartment fitted for the use of gas, for injuries resulting from an explosion alleged to have been caused by negligence of a plumber employed by the defendant to place caps upon open pipes in the apartment, there was evidence tending to show that the plumber had informed the plaintiff's daughter that he had put caps on the pipes and that she had so informed the plaintiff previous to the accident; and there was no evidence that there was an odor of escaping gas or that there was any other fact to warn the plaintiff that the plumber had not done his work properly. It appeared that the explosion was caused by the plaintiff going with a lighted match into a hall where gas had collected because the plumber had not placed a cap on one of the pipes. Held, that the question of the plaintiff's due care was for the jury.
DeCOURCY, J.
When the plaintiff moved into the defendant's new house there were openings in the gas pipes through which the gas, when turned on at the meter, would escape into the rooms. A plumber was engaged to put caps upon these openings, and his workman negligently left one of them unclosed, in consequence of which occurred the explosion that injured the plaintiff. Under the special answer of the jury it must be taken as established that the order to the plumber came from Dr. Henin, whose general agency for the defendant was admitted; consequently the tenth and eleventh requests relating to the agency of his brother Jacob Henin become immaterial. And the jury were warranted in finding, by the testimony of the plumber Bergman, that the order to do the work was given by Dr. Henin personally.
The court, at the defendant's request, fully instructed the jury upon the limited duties owed by a landlord to a tenant under our law, and confined the defendant's liability to a negligent performance of work which she had promised and undertaken to do. Although the contract of letting imposed upon Mrs. Henin no obligation to put the premises into tenantable condition, or to make repairs, and she was at liberty to repudiate a promise to do so, nevertheless when she did undertake to carry out a promise to put caps upon the openings in the gas piping, even though there was no consideration for her promise, she became liable to the plaintiff for a failure to perform the work with reasonable skill and care. The requests numbered 2, 8, 18 and 19 were rightly refused. Gill v. Middleton, 105 Mass. 477. Dix v. Old Colony Street Railway, 202 Mass. 518. Galvin v. Beals, 187 Mass. 250.
The issue of the plaintiff's due care was for the jury, and we cannot say that their finding in his favor was not warranted by the evidence. There was testimony that the plumber notified the plaintiff's daughter that he had put caps on the pipes, and that she had so informed her father previous to the accident. There was no evidence of the odor of escaping gas, or of any other fact calculated to warn the plaintiff that the plumber had not done his work properly.
Exceptions overruled.