EDITH MARIE ROSS, administratrix, vs. SARAH BROITMAN.

EDITH MARIE ROSS, administratrix, vs. SARAH BROITMAN.

338 Mass. 770

January 5, 1959 - April 6, 1959

Suffolk County

Present: RONAN, SPALDING, COUNIHAN, WHITTEMORE, & CUTTER, JJ.

At the trial of an action to recover for the death of the plaintiff's intestate, where the judge struck out of an auditor's report the auditor's "view of the law upon which . . . [his] finding depends," there was no error in the judge's refusal to also strike out of the report a finding of negligence of the defendant contributing to cause the intestate's death and a finding for the plaintiff for stated damages. [771-772]

Evidence in an action for death that a common hallway of an apartment building owned by the defendant was in her control, that a large accumulation of paper and cardboard in the hallway, not shown to have been placed there by the defendant or her agent, had been in plain view and its presence there known to the defendant for some weeks or months, and that when a fire started in an adjacent apartment occupied by a tenant the accumulated material intensified the fire and caused it to spread through a window at the rear of the hallway to an adjoining apartment building, where it reached an apartment and brought about the death of the plaintiff's intestate, warranted findings that the defendant was negligent in permitting maintenance of the accumulated material in the hallway and that such negligence was a proximate cause of the death of the plaintiff's intestate. [772-773]

At the trial of an action for death at which the judge instructed the jury properly on the effect of a violation of a certain statute as evidence of the defendant's negligence, there was on the record no error in refusing correct instruction requested by the defendant to the effect that the statute did not create any new duty of the defendant to the plaintiff's intestate apart from the defendant's common law duty and that a violation of the statute did not itself create a civil liability on the part of the defendant. [773-774]

At the trial of an action to recover for the death of the plaintiff's intestate in an apartment building as a result of a fire which started in a rented apartment in an adjoining apartment building owned by the defendant, a violation of G. L. c. 148, Section 24, by the defendant could be found in that a common hallway under her control in her building had been used for some weeks or months, to her knowledge although not by

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herself, for the storage of a large accumulation of paper and cardboard which intensified the fire and caused it to spread to the other building, and such violation would be evidence of negligence on her part toward the plaintiff's intestate. [774-775]

TORT. Writ in the Superior Court dated April 30, 1956.

The action was tried before Cahill, J.

Joseph G. Schumb, (Harold Markel with him,) for the defendant.

Arthur Brogna, for the plaintiff.

WHITTEMORE, J. In this action of tort the plaintiff had verdicts for the conscious suffering and death of the plaintiff's intestate, Donna Marie Ward, in a fire in premises of the defendant. The defendant excepted to the denial of a motion for a directed verdict, to the refusal to give certain requests, to instructions given, and to the denial in part of a motion to strike material from the auditor's report.

The evidence permitted the jury to find as follows: The fire occurred on May 12, 1955, in two adjoining, attached, wooden frame, three apartment buildings, 1 Milton Street and 35 Spring Street, Boston, owned by the defendant. The fire started in the first floor apartment at 1 Milton Street occupied by a tenant, Antony Calafano, whose business was dealing in junk. A large accumulation of paper and cardboard (about five feet high and twelve feet long) in the first floor common hallway, at 1 Milton Street, which was in the control of the defendant, had been in plain view and known to the defendant for some weeks or months. This accumulated material created an intensity in the fire which caused it to spread through a window at the rear of the hallway to the building at 35 Spring Street. The fire reached the third floor apartment of the plaintiff's mother at 35 Spring Street and there caused the death of the plaintiff's intestate. There was no evidence that the defendant, her agents or servants, had placed the paper and cardboard in the hallway.

1. The trial judge on motion of the defendant struck from the auditor's report the words "[t]he view of the law upon which my finding depends is that the defendant was

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negligent in permitting the hallway under her control on the first floor of the building owned by her at 1 Milton Street to be used for the storage of inflammable materials, which were or might become, dangerous to the public safety as a fire menace in violation of the provisions of . . . G. L. c. 148, Section 24, and under such circumstances and conditions that a fire might likely result therefrom, or become intensified, or uncontrollable thereby, and that such negligence was a contributing cause of the spread of the fire to 35 Spring Street and the resulting conscious suffering and death." The defendant contends that the judge should therefore also have struck out the words "and that the defendant was guilty of negligence, which created a fire hazard that was a contributing cause of the spread of said fire to the building at 35 Spring Street and of the conscious suffering and death of Donna Marie Ward," and the words, "I find for the plaintiff and assess damages in the amount of five hundred dollars ($500) for conscious suffering and five thousand dollars ($5,000) for the death." We disagree.

General Laws c. 221, Section 56, requires that the court "exclude any finding of fact which appears in the report to be based upon an erroneous opinion of law, or upon inadmissible evidence." That the judge did not strike the conclusions in respect of negligence shows that he did not deem these conclusions to be based on an erroneous view of the law or inadmissible evidence. The judge's action in striking the material from the report shows in the circumstances that he believed it inadvisable to give to the jury the auditor's "view of the law." This was consistent with the judge's function to instruct the jury as to the law. There is no exception before us to the act of striking the material which was deleted. We intend no suggestion.

2. There was no error in denying the motion for a directed verdict. In Chalfen v. Kraft, 324 Mass. 1 , 4-5, we ruled that the defendant, in possession and control of the cellar of a three apartment building, owned by him, with a janitor in charge of the heating equipment therein, was subject to the rule "that a person in control of a building must exercise

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reasonable care to keep it in such condition that others will not be injured." We pointed out that the duty does not arise out of landlord and tenant relationship and extends as much "to an occupant of another part of the building, whether the negligent person be landlord or tenant, as it does to an adjoining proprietor or to a traveller on the highway." We think that the defendant's control of a common hallway is not to be distinguished from an owner's control of a cellar, and that the employment of a janitor is immaterial. We rule that it was a question for the jury whether the defendant should have contemplated that a fire or an intensified fire was a probable happening from the maintenance of the paper and cardboard in the hallway. See Mitchell v. Lonergan, 285 Mass. 266 , 270-271; Commonwealth v. Welansky, 316 Mass. 383 , 401. In Stone v. Boston & Albany R.R. 171 Mass. 536 , where oil, delivered for transportation, was kept on a platform longer than allowed by Pub. Sts. c. 102, Section 74, and a fire resulted from the careless act of a visitor, the majority of the court (p. 543) ruled for the defendant on the ground that the fire was not the probable consequence of the defendant's negligence, since the result was unusual and unlikely. We think the principles of causation enunciated by Knowlton, J., in his dissent (p. 545) are applicable to the case now before us. See, as to the Stone case, Geraci v. A. G. Tomasello & Son, Inc. 293 Mass. 552 , 555. Compare, generally, Kaufman v. Boston Dye House, Inc. 280 Mass. 161 , 168; Little v. Lynn & Marblehead Real Estate Co. 301 Mass. 156 , 160-161.

The principle that an owner in control of a common passageway does not have a duty, in the relationship of landlord and tenant, to remove objects placed therein by others (see Richmond v. Warren Inst. for Sav. 307 Mass. 483 , 486 [a bicycle]) is not applicable to this case.

There was no error in respect of requested rulings and instructions given. It is true that the defendant's requests numbered 4 and 5 correctly stated the law. "4. Violation of G. L. c. 148, Section 24, does not create any civil liability by the defendant to the plaintiff. 5. Chapter 148, Section 24, created

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no new duty of care owed by the defendant to the plaintiff other than that existing at common law." It is well established that such a statute, although its violation by a person to whom it applies is evidence of negligence (Wainwright v. Jackson, 291 Mass. 100 , 102), does not in itself create a new obligation. Richmond v. Warren Inst. for Sav. 307 Mass. 483 . But the judge properly instructed (see infra), "The violation of a statute is some evidence of negligence, although not conclusive. To base recovery upon it, it (that means the violation) should be an effective and contributing cause of the injury or damage and not merely an attendant circumstance." At the close of the charge in dealing with the plaintiff's requests he read the statute [Note p774-1] and expounded its meaning. He then read the plaintiff's request numbered 2 as follows: "`If the defendant knew or by reasonable inspection should have known that the common passageway under her control on the first floor dwelling house at 1 Milton Street was being used for the storage and keeping of newspapers and cardboard that may become dangerous to the public safety as a fire menace and that she did nothing to remove them, then the defendant herself as owner of the premises may be found' (and whether she is or not is entirely up to the jury) `to have violated G. L. c. 148, Section 24.'" The judge also then read the plaintiff's request numbered 3, the substance of which he had already stated. The plaintiff did not contend that the statute created a duty. There was no occasion to embark on an unnecessary and possibly confusing exposition of the law in respect of what the statute did not do.

There was no error in the instructions with respect to the violation of the statute. The violation was evidence of negligence

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in that a part of the defendant's building which was in her control was being used for the storage of paper which the jury could find was a fire menace. "Paper stock" is mentioned in the statute. The defendant knew that her building was being so used. The case of Little v. Lynn & Marblehead Real Estate Co. 301 Mass. 156 , is distinguishable for there the inflammable material was on the premises in the control of a tenant and the defendant did not know of it. The opinion (p. 161) points out that there is no general provision in c. 148 that the owner cause the requirements to be complied with. Compare Chase v. Proprietors of Revere House, 232 Mass. 88 , 95. Here the statute spoke to the defendant as the person owning and in control of the place of violation. It is helpful in construing the statute to recall that a person who maintains a public nuisance, not created by him, is liable therefore, Fuller v. Andrew, 230 Mass. 139 , 146, and that he who continues a private nuisance on his premises, not created by him, after notice to abate or knowledge that it is a nuisance and injurious is also liable. Maynard v. Carey Constr. Co. 302 Mass. 530 , 533, and cases cited.

There was no error in reading and expounding the statute. The plaintiff's request numbered 2 as given was sufficiently precise. The statute is not limited, in its application, as the defendant contends, to her own use of the premises for storing paper.

What we have said shows that neither request numbered 1 nor request numbered 6 [Note p775-1] could have been given. Request numbered 2 (no duty on the defendant to prevent the spread of the fire until she had notice of it) was inapplicable.

Exceptions overruled.

FOOTNOTES

[Note p774-1] General Laws c. 148, Section 24, provides: "No part of any building used for habitation nor that part of any lot within fifty feet of any building so used shall, except as permitted by section twenty-three, be used for the storage, keeping or handling of any article or material that is or may become dangerous to the public safety as a fire menace, and no part of any such building shall be used as a carpenter shop or paint shop, nor for the storage, keeping or handling of excelsior, shavings, sawdust, cotton, paper stock, feathers or rags, except under such terms and conditions as the head of the fire department may prescribe in writing."

[Note p775-1] "1. There was no responsibility on the part of the defendant, outside of any provision of any statute, to remove from the premises anything which was put thereon by any person other than the defendant or her agents or servants." "6. Even though the defendant knew of or should have known of the presence of paper and cardboard in the hallway of the premises at 1 Milton Street prior to the fire, the defendant is not liable for the spread of the fire and the ultimate death of the plaintiff's intestate."