Yorra v. Lynch , 226 Mass. 153 ( 1917 )

Loring, J.

The decision in Green v. Carigianis, 217 Mass. 1, is decisive of the main issue in the case at bar. In Green v. Carigianis, it was decided that the plaintiff made out a case by showing that while passing along the sidewalk he was struck by a slate which fell from the roof of a building in the occupation and control of the defendant. In the case at bar there was evidence that the plaintiff, while leaning out of a second story window of a building owned by and in the control of the defendant Lynch, was struck by a part of the capping of the party wall; that the building was owned by Lynch and was let by him in tenements; that the second story was let to and occupied by the plaintiff’s father (apparently as a subtenant) and that the plaintiff was a member of his father’s family; that the capping which fell on the plaintiff was a piece of old galvanized iron that had been exposed to the elements for some three or four years, which was the average life of such material; and that it came from some part of the party wall within ten feet back from the front of the building.

1. Lynch’s first contention is that if either defendant is liable it is not he but Donnelly. This contention is founded on the fact that Lynch had let to Donnelly the exclusive right to use the roof for j,bill posting and general advertising and upon the further fact that in this connection Donnelly had agreed “to keep the roof in repair” and so had become the person who was liable (if either was liable) within the doctrine of Wixon v. Bruce, 187 Mass. 232. But by the true construction of it that agreement was confined to the roof and did not cover the party wall. The party wall remained in the occupation and control of the defendant Lynch.

2. Lynch’s next contention is that the plaintiff did not show that he rather than the owner of the adjoining building owned and comtrolled the party wall and therefore no case against him was made out by the evidence. It appears from the bill of exceptions that the adjoining building was one story lower than Lynch’s building. Under these circumstances it must be taken in .the absence of further evidence that the wall was built by Lynch or some predecessor in title and was in Lynch’s control.

3. Lynch’s next contention is that this case comes within the rule as to common stairways and hallways (as to which see Flanagan v. Welch, 220 Mass. 186) and for that reason the burden was upon the plaintiff to prove that the party wall was in a worse condition than it was or appeared to be at the beginning of the lease to the plaintiff’s father, and no evidence as to that effect was put in by the plaintiff. But when the plaintiff was hurt he was not using a common hallway or passageway. On the contrary he was using the tenement to which his father had the exclusive right under the lease or sublease to him. The rule of common hallways has nothing to do with the case at bar.

4. The plaintiff was entitled to the same protection from slates or pieces of capping falling from the roof that a traveller on the sidewalk is entitled to.

5. Lynch has also contended that this case comes within Wadsworth v. Boston Elevated Railway, 182 Mass. 572, and McGee v. Boston Elevated Railway, 187 Mass. 569. Both of these cases were considered and distinguished in Green v. Carigianis, ubi supra.

6. There was no evidence on which the jury could find that the defendant Donnelly was liable.

By the terms of the report judgment is to be entered on the verdict in the action against Donnelly. In the action against Lynch judgment is to be entered for the plaintiff in the sum of $400.

So ordered.