Leydecker v. Brintnall , 158 Mass. 292 ( 1893 )

Allen, J.

The defendant contends that the triangular space where the accident occurred passed to his lessee, Wheeler, under the lease, as an appurtenance to the premises leased. This point is not now open, it not being shown by the bill of exceptions that it was taken at the trial. There was no ruling upon it by the court. If the point were open, it is impossible to say, as matter of law, that this space passed as an appurtenance under the lease. The lease does not include the stairway nor the approaches thereto. The lessee’s covenant to save the lessor harmless “ from any claim or damage arising from neglect in not removing snow and ice from the roof of the building, or from- the sidewalks bordering from the premises so leased,” was one which he had a right to make, if he saw fit to do so; but it could hardly be contended that it had the effect to give to the lessee the sole occupancy of the sidewalk in front of the defendant’s stable, or that it bound him to keep the same in general repair. The whole argument resting on the assumption that Wheeler was bound by his lease to keep this space in repair, and that the defendant was exonerated from that duty, fails.

This being so, the general rule of law as to a landlord’s responsibility for defects in the approach to a stairway, used by several tenants, is applicable. Looney v. McLean, 129 Mass. 33. Watkins v. Goodall, 138 Mass. 533.

The defendant’s request for an instruction, that the mere fact that the landlord retained the use of one or two rooms in a building leased to a tenant did not conclusively determine that the landlord had control of the approaches, was rightly refused. The proper time to present requests for instructions is before the charge, and not after, unless there are circumstances making it necessary to call attention to some matter of detail or some phase of the case which has been overlooked or inaccurately dealt with. There had been nothing in the charge to signify that the mere fact referred to, under all circumstances, would conclusively determine that the landlord had control of the approaches. The statement that “ the same principle applies where the owner himself retains portions of the premises in his own possession, and under his own control,” obviously refers to what has been said just before, as to different tenants who have the right to use the approaches in common, and could not have been understood to apply to the case of a landlord who retained portions of the premises in his own possession, with no right to use the approaches in common with his tenant or tenants of other portions of the building. There was in this case no dispute that the defendant and his employees had a right to use the stairway and approaches to gain access to the rooms reserved by him on the second floor, if they wished to do so. The only conflict of testimony was as to the extent of the actual use thereof.

Proof of the defendant’s ignorance of his true boundary line was properly excluded. As between him and his tenants, he was bound to know. The city was not bound to keep the triangular space in repair. Damon v. Boston, 149 Mass. 147, and cases cited. An owner of land bounding on a street cannot escape liability for neglect to beep in proper repair the approaches to his tenement, which is let to tenants, by saying that he did not know where his boundary line was. He owed to his tenant and those employed by such tenant the duty not to expose them to a dangerous condition of the place, which reasonable care on his part would have prevented. Holmes v. Drew, 151 Mass. 578. And this duty is not rendered the less by his ignorance of his true boundary line. Foley v. McCarthy, 157 Mass. 474. If it was not the defendant’s duty to keep this place in proper repair, then it was nobody’s duty.

The ruling that it is not necessary that the defendant should have known of the defect, in order to be liable for it, was right Lindsey v. Leighton, 150 Mass. 285.

Exceptions overruled.