JULIA M. MCCARTHY & another vs. STEPHEN M. STEPHENS & another.

JULIA M. MCCARTHY & another vs. STEPHEN M. STEPHENS & another.

338 Mass. 791

January 28, 1959

Exceptions sustained. There was evidence from which the jury could have found that the plaintiff Julia M. McCarthy (hereinafter, the plaintiff) was on January 8, 1957, caused to fall on the common cellar stairway in the house in which she and her husband were tenants, because of "the slippery condition of the steps due to . . . ice, the broken edge of the second step, and . . . [the] shaky condition of the banister [so that] she was unable to maintain her grasp on it." There was also evidence from which it could have been found that the defendants should have known of the defective condition of the steps, other than the ice, and that this condition resulted from deterioration after the defendants in December, 1944, purchased the premises, in which the plaintiff then occupied an apartment. The question of the plaintiff's contributory negligence was for the jury. It was error to direct a verdict for the defendants. It was also error to exclude three photographs of the place of the fall taken ten days after the accident. There was uncontroverted testimony that the photographs fairly represented the areas depicted as observed immediately after the injury.