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WILKINS, Justice. This is an action of tort by a tenant in an apartment house against her landlord for personal injuries sustained from a fall on an unnatural accumulation of ice on the steps of a common entrance to the building due to alleged negligent maintenance of a gutter. The jury returned a verdict for the plaintiff. 1. One of the defendant's exceptions was to the denial of a motion to direct a verdict in its favor. This ruling was right. On the evidence most favorable to the plaintiff the following could have been found: The building contained four apartments, and in May, 1937, the plaintiff became a tenant of the apartment on the second floor. On January 2, 1938, following a heavy rain and sleet storm, the plaintiff ascended 'the outside flight of stairs, which was the main stairway, the principal front way for getting into the house.' There was a thin coating of ice on the steps. When 'she got up to the thirteenth step and went to reach for the door, there was a hard lumpy coating of ice in the center' of the step 'not at all like what it was on the other steps; * * * the lumpy ice extended from about one foot and a half to two feet from the rail on the right over to about one foot or a foot and a half on the step.' She lost her balance and fell. A Mrs. Miller, the janitor of the building for more than a year before January, 1938, had charge of cleaning and shoveling the front stairway. On the evening of January 1, 1938, she observed that 'on the thirteenth step there was a hard, rough, lumpy coating of ice about three inches thick.' Both at that time and on the following day Mrs. Miller noticed that a gutter under the windows on the top floor was dripping down onto a small, narrow porch roof over the front door, and then down onto the thirteenth step. The first time that Mrs. Miller had noticed this dripping was in September or October, 1937, and 'through that fall and during the whole winter it did that.' Mrs. Miller brought this to the attention of an agent of the defendant. At the place where Mrs. Miller 'noticed the dripping from the gutter, she noticed the gutter was rotted; that the rot extended for a distance of more than two feet; that she did not know whether the gutter was wood or metal but believed it was metal.' The defendant's duty to the plaintiff was to use reasonable care to keep the gutter in as good a condition as that in which it was or appeared to be at the beginning of the tenancy. Rogers v. Dudley Realty Corp., 301 Mass. 104, 105, 16 N.E.2d 244, and cases cited. See Sneckner v. Feingold, 314 Mass. 613, 614, 51 N.E.2d 118; Sullivan v. Belding, 315 Mass. 701, 703, 54 N.E.2d 1. While there was no direct evidence whether the rotted condition existed in May, 1937, at the time of the letting, or how long before September or October, 1937, it first appeared, the jury could warrantably infer that it first became so rotted as to permit dripping at the time when Mrs. Miller, whose duty it was to take care of the steps, first noticed it. Silver v. Cushner, 300 Mass. 583, 586, 16 N.E.2d 27; Shwartz v. Feinberg, 306 Mass. 331, 334, 335, 28 N.E.2d 249. The defendant is not exonerated because the condition resulted from deterioration. Griffin v. Rudnick, 298 Mass. 82, 86, 9 N.E.2d 388; Rogers v. Dudley Realty Corp., 301 Mass. 104, 106, 107, 16 N.E.2d 244. The jury could have found that the defendant had sufficient notice to permit repairs before the plaintiff was injured. See Silver v. Cushner, 300 Mass. 583, 586, 16 N.E.2d 27. It also could have been found that independently of notice the defendant should have discovered and remedied the defect. Chambers v. Durling, 306 Mass. 327, 331, 28 N.E.2d 459.

Professional & Technical
June 5
LawApp Publishers

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