Ackarey Et Al. v. Carbonaro

WILKINS, Justice. The minor plaintiff (hereinafter called the plaintiff) was hurt by a fall due to a defective piazza railing of a summer dwelling owned by the defendant and rented furnished to the plaintiff's father. In this action of tort the declaration is in four counts. Counts 1 and 2 seek damages for the plaintiff's injuries. Counts 3 and 4 are by her father for consequential damages. G.L. (Ter.Ed.) c. 231, § 6A, as inserted by St.1939, c. 372, § 1. All four counts allege the defendant's ownership, the letting of the furnished house to the plaintiff's father for a period of one week, and the plaintiff's injuries. Counts 1 and 2 allege that the 'railing gave way because of its defective condition and the defective and unsafe way in which it was held in place; that such defective conditions existed at the time of the letting * * * were not known to her before her injuries.' Count 1 contains an allegation that the defect 'should have been known to the defendant.' Count 2 contains an allegation that 'the defendant negligently suffered such defective conditions to exist at the beginning of and during her father's tenancy.' Count 4 is analogous to count 1. Count 3 is substantially the same as count 4, but omits the allegation that the defect should have been known to the defendant. At the trial the parties agreed that count 3 sounds in contract, and that the other three counts sound in tort. The Judge allowed the defendant's motion to direct a verdict in his favor on each count, and the plaintiffs excepted. The jury could have found these facts: The defendant owned a double cottage at Salisbury Beach, which was furnished. He rented the southerly half of the cottage to the plaintiff's father for one week beginning August 21, 1943. On the southerly side there was a first floor piazza with a one-piece wooden railing which was nailed at one end to the cottage and at the other end to a post. On August 25 the plaintiff, aged eleven, was watching for the iceman. When she put her hands on the railing 'to lean over, it broke and she fell.' The railing was rotted on both ends and pulled away from the nails where it was fastened to the post. When a witness 'touched the post-end of the railing, the other end * * * still held to the house fell off.' The defendant testified that at the time of the letting the railing 'appeared to be in good condition,' and similar testimony was given by witnesses called by the plaintiff. There was no evidence to the contrary.