Landlord and Tenant. Negligence, Of one owning or controlling real estate, Plaintiff's knowledge of defect.
In an action by a girl about nine years of age when injured, who was living with her father in a tenement hired by him from the defendant, for personal injuries caused by a defect in a plank walk at the side of a passageway leading from the house containing the tenement to a highway, if there is evidence that the defendant let the tenement to the plaintiff's father with the right to use the passageway as the only approach to it, that the passageway remained in the sole control and charge of the defendant, that at the time of the letting the plank walk was in good condition, that the defendant recognized the duty of keeping it in the same condition and caused some repairs to be made upon it or a new walk to be laid either before or after the letting, and that after the letting the defendant allowed the walk to become defective and dangerous in such a way as to cause the plaintiff's injury, the question of the defendant's negligence is for the jury.
In an action by a girl about nine years of age when injured, who was living with her father in a tenement hired by him from the defendant, for personal injuries caused by the plaintiff's foot catching in a hole in a plank walk at the side of a passageway, which was maintained by the defendant as the only approach to the house containing the tenement and was in the defendant's charge and control, where there is evidence of the defendant's negligence in failing to maintain the walk in as good condition as it was in at the time the tenement was let to the plaintiff's father, if it appears that the hole "was about six inches wide and about the same in length" and the plaintiff has testified that she "had noticed the hole before pretty nearly every day for a month and a half," and there also is evidence, that the accident happened at about seven o'clock on an evening early in August, when it was pretty dark, that the plaintiff had had trouble with her eyes and was wearing glasses, and that when she tripped in the hole she was with her father going to see the fire engines go by, the plaintiff's previous knowledge of the defect, although it is a circumstance to be considered by the jury upon the question of her due care, is not conclusive against her upon that issue, and the question whether with reference to all the circumstances the plaintiff was in the exercise of reasonable care is for the jury.
SHELDON, J.
The jury could find that the defendant leased the tenement on Union Place to the plaintiff's father, with the right to use that passageway as the sole approach to and from the tenement, that the passageway remained in the sole control and charge of the defendant, and that she assumed the duty of keeping it and the board walk which ran through it in as good condition for the use of the father and his family as at the time of the letting. Faxon v. Butler, 206 Mass. 500. Miles v. Janvrin, 200 Mass. 514. Domenicis v. Fleisher, 195 Mass. 281. Andrews v. Williamson, 193 Mass. 92. Leydecker v. Brintnall, 158 Mass. 292. There was also evidence that the defendant recognized this duty (Nash v. Webber, 204 Mass. 419, 425), and caused some repairs to be made on the walk or a new walk to be laid down, whether before or after the letting to the plaintiff's father may not be wholly clear on the evidence. There was evidence also that since the letting the walk was allowed to become defective and dangerous, in such a manner as to warrant an inference of negligence on the part of the defendant.
And there was evidence of due care on the part of the plaintiff. Her previous knowledge of the defect was a circumstance to be considered, but it was not conclusive against her as matter of law, though the jury might have found it to be so in fact. Page v. Weymouth, 207 Mass. 325. Frost v. McCarthy, 200 Mass. 445, 448. For the same reasons it could not be ruled that she had assumed the risk of injury from the defect even if this defense was open under the answer.
It follows that each one of the defendant's requests was rightly refused.
A different question would have been presented if it had appeared that this passageway, though a private way, had been wrought into the similitude of a public street, and if there had not been evidence that the defendant had assumed a duty in regard to it. We express no opinion upon such a question.
Exceptions overruled.