Johnson v. Fainstein

Crosby, J.

The plaintiff’s injuries could be found to have been caused by her foot coming in contact with two nails projecting above a tread upon a common stairway in the control of the defendant, which stairway the plaintiff had a right to use as a tenant of the defendant. One of these nails projected above the tread one sixteenth of an inch, and the other three sixteenths of an inch. It also could have been found that the defendant had notice of the presence of these projecting nails before the plaintiff was injured. If the nails amounted to a defect, the jury would have been warranted in finding that they constituted a concealed danger to the tenant which was known to the lessor and which she was bound to disclose in order that the lessee might guard against them. Cowen v. Sunderland, 145 Mass. 363. Booth v. Merriam, 155 Mass. 521.

The question is: Could these projecting nails be found to be a defect as against persons rightfully using the stairway? We are of opinion that substantially this question was decided by this court in Jennings v. Tompkins, 180 Mass. 302, in which it was held that where a tread upon a stair was worn so that a nail projected three sixteenths of an inch, it was not a defect. In that case the plaintiff, while leaving the defendant’s theatre, caught his heel upon the nail and was thrown down and injured. He was rightfully using the step by invitation of the defendant, whose duty it was to exercise reasonable care to furnish for the plaintiff safe and proper stairs and other means of entrance and exit from the theatre. Oxford v. Leathe, 165 Mass. 254.

The case at bar cannot be distinguished from Jennings v. Tompkins, supra, and is governed by it. It follows that the action cannot be maintained, and that the ruling of the presiding judge was right.

Exceptions overruled.