Rugg, C. J.
This is an action of tort to recover for the conscious suffering and death of the wife of Eli Bergeron, who was a tenant at will of the defendant on the second floor of a three-story house.' Connected with and a part of the tenement of Eli was a piazza surrounded by a railing or balustrade, which gave way when the deceased went to empty a teapot over the railing, and she fell to the ground and suffered injuries from which she subsequently died. This action is brought to recover compensation for the conscious suffering and the penalty for the death. The case went to the jury upon four counts. The first two counts alleged a binding contract with Eli Bergeron by the defendant to make repairs upon the railing, an undertaking to repair and a negligent malting of the repairs and consequent injury to the deceased. The other two counts declared upon a gratuitous undertaking by the defendant to repair the railing, negligent performance thereof with consequent injury to the deceased, who relied "upon the assurance of the defendant’s agent to her that it was safe.” There was no allegation of gross negligence.
The verdict was general respecting the counts. Hence, in the [398]*398absence of other reversible error, it must stand if there was sufficient evidence to go to the jury upon any count. Pelton v. Nichols, 180 Mass. 245.
There is no contention that, as a part of the original contract of hiring the tenement, the parties agreed that, and therefore came into relations whereby, the landlord assumed the duty of looking after the condition of the premises as to safety from time to time and of doing what was necessary to that end whenever occasion arose. Confessedly the rule of Miles v. Janvrin, 196 Mass. 431; S. C. 200 Mass. 514, 516, does not apply to the situation here disclosed.
The rights and obligations of the parties arising from the initial contract of letting the tenement were such as ordinarily attach to landlord and tenant under an oral lease. These rights and obligations are that there was no implied agreement that the demised premises were or would continue to be fit for occupancy. The tenant took them as he found them and there was no duty resting on the landlord to make repairs upon them. Conahan v. Fisher, ante, 234, where the cases are collected.
Cases like Means v. Cotton, 225 Mass. 313, 319, respecting the non-liability of a tenant for permissive waste, have no relevancy to the issues here raised.
The defendant as landlord cannot be held liable unless he has undertaken to make repairs and has made them negligently. (1) If he does this by virtue of some contract with the tenant, whereby during the tenancy either repairs or changes are made in the demised premises, the right of recovery is not limited to the tenant personally but includes all persons who within the contemplation of the parties were to use the premises under the hiring. Feeley v. Doyle, 222 Mass. 155, 157. (2) But if the landlord does this gratuitously, he is liable only to the tenant or person with whom he makes the gratuitous undertaking. Thomas v. Lane, 221 Mass. 447. Gill v. Middleton, 105 Mass. 477. In the first class of cases, that is to say, where the landlord makes repairs under contract, he is liable for ordinary negligence. Galvin v. Beals, 187 Mass. 250. In the second class of cases, that is to say, where the landlord makes repairs gratuitously, he is liable only for gross negligence, Massaletti v. Fitzroy, 228 Mass. 487, 509, except in those instances where death is caused by such act of [399]*399negligence, when, liability for death being wholly statutory, under the terms of R. L.- c. 171, § 2, as amended by St. 1907, c. 375, a landlord, as well as others causing the death of a human being by negligence, is subject to the penalty there provided for ordinary negligence. Brown v. Thayer, 212 Mass. 392, 397, 398. Flynn v. Lewis, 231 Mass. 550. But the class of persons for whose death a landlord may be subject to a penalty is not enlarged beyond the class to whom he is liable for gross negligence in causing conscious suffering, because, as is pointed out in the full discussion in Thomas v. Lane, 221 Mass. 447, with ample citation of authorities, there is no duty arising out of a gratuitous making of repairs by a landlord to anybody except to the person or persons with whom the gratuitous undertaking was directly made. There can be no negligence unless there is a duty. Negligence consists in doing or omitting to do an act in violation of a legal duty or obligation due to the person sustaining injury. Minor v. Sharon, 112 Mass. 477, 487. Lebourdais v. Vitrified Wheel Co. 194 Mass. 341. Bernabeo v. Kaulback, 226 Mass. 128, 131. Mammott v. Worcester Consolidated Street Railway, 228 Mass. 282, 284. Savings Bank v. Ward, 100 U. S. 195, 202, 205. By way of precaution it may be added that, if the landlord does an act of gratuitous repair which creates a situation inherently dangerous, such as the presence of explosives without notice and such like conditions, there may be liability under the principle elucidated with full review of decisions in Thornhill v. Carpenter-Morton Co. 220 Mass. 593.
It is conceded that the railing, the breaking of which caused injury to the deceased, was out of repair.
1. We treat first the case presented by the first two counts. There was evidence tending to show in substance that the tenant during the summer of 1915, in the presence of the deceased, said to the son of the defendant that the rail of the piazza, which subsequently caused the injury, was unsafe and that he would move out if it was not fixed, and that the reply was that he “guessed there was no need to move out” and that he would see his father about it; that on the following Saturday the same son returned and made repairs upon the piazza and railing. As to the authority of the son to make these repairs, theré was considerable evidence to the effect that this son made repairs when [400]*400told to do so by his father, and that before the accident, in August, 1914 or 1915, this son had reported to his father that “the Bergerons . . . wanted some work done” and that he had authorized the son to make some repairs. There was much conflicting testimony and a contrary finding well might have been made. This was enough, however, to warrant a finding that the repairs to the railing were made by the son with the authority of the defendant, and that the reason for making the repairs was to induce the tenant to continue his occupancy of the premises, and thus that it was not a case of gratuitous repairs but of repairs made for a consideration. The construction sought tp be put upon the testimony by the defendant is too narrow. The case is distinguishable from Rolfe v. Tufts, 216 Mass. 563, and also from Kettleman v. Atkins, 229 Mass. 89, relied on by him. There was evidence that the repairs were made negligently and that this was the cause of the injury to the deceased. Upon this aspect of the case the plaintiff was entitled to go to the jury, because the wife of the tenant belonged to the class contemplated by the parties as entitled to use the demised premises. The case comes within the authority of Feeley v. Doyle, 222 Mass. 155.
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Rugg, C. J.
This is an action of tort to recover for the conscious suffering and death of the wife of Eli Bergeron, who was a tenant at will of the defendant on the second floor of a three-story house.' Connected with and a part of the tenement of Eli was a piazza surrounded by a railing or balustrade, which gave way when the deceased went to empty a teapot over the railing, and she fell to the ground and suffered injuries from which she subsequently died. This action is brought to recover compensation for the conscious suffering and the penalty for the death. The case went to the jury upon four counts. The first two counts alleged a binding contract with Eli Bergeron by the defendant to make repairs upon the railing, an undertaking to repair and a negligent malting of the repairs and consequent injury to the deceased. The other two counts declared upon a gratuitous undertaking by the defendant to repair the railing, negligent performance thereof with consequent injury to the deceased, who relied "upon the assurance of the defendant’s agent to her that it was safe.” There was no allegation of gross negligence.
The verdict was general respecting the counts. Hence, in the [398]*398absence of other reversible error, it must stand if there was sufficient evidence to go to the jury upon any count. Pelton v. Nichols, 180 Mass. 245.
There is no contention that, as a part of the original contract of hiring the tenement, the parties agreed that, and therefore came into relations whereby, the landlord assumed the duty of looking after the condition of the premises as to safety from time to time and of doing what was necessary to that end whenever occasion arose. Confessedly the rule of Miles v. Janvrin, 196 Mass. 431; S. C. 200 Mass. 514, 516, does not apply to the situation here disclosed.
The rights and obligations of the parties arising from the initial contract of letting the tenement were such as ordinarily attach to landlord and tenant under an oral lease. These rights and obligations are that there was no implied agreement that the demised premises were or would continue to be fit for occupancy. The tenant took them as he found them and there was no duty resting on the landlord to make repairs upon them. Conahan v. Fisher, ante, 234, where the cases are collected.
Cases like Means v. Cotton, 225 Mass. 313, 319, respecting the non-liability of a tenant for permissive waste, have no relevancy to the issues here raised.
The defendant as landlord cannot be held liable unless he has undertaken to make repairs and has made them negligently. (1) If he does this by virtue of some contract with the tenant, whereby during the tenancy either repairs or changes are made in the demised premises, the right of recovery is not limited to the tenant personally but includes all persons who within the contemplation of the parties were to use the premises under the hiring. Feeley v. Doyle, 222 Mass. 155, 157. (2) But if the landlord does this gratuitously, he is liable only to the tenant or person with whom he makes the gratuitous undertaking. Thomas v. Lane, 221 Mass. 447. Gill v. Middleton, 105 Mass. 477. In the first class of cases, that is to say, where the landlord makes repairs under contract, he is liable for ordinary negligence. Galvin v. Beals, 187 Mass. 250. In the second class of cases, that is to say, where the landlord makes repairs gratuitously, he is liable only for gross negligence, Massaletti v. Fitzroy, 228 Mass. 487, 509, except in those instances where death is caused by such act of [399]*399negligence, when, liability for death being wholly statutory, under the terms of R. L.- c. 171, § 2, as amended by St. 1907, c. 375, a landlord, as well as others causing the death of a human being by negligence, is subject to the penalty there provided for ordinary negligence. Brown v. Thayer, 212 Mass. 392, 397, 398. Flynn v. Lewis, 231 Mass. 550. But the class of persons for whose death a landlord may be subject to a penalty is not enlarged beyond the class to whom he is liable for gross negligence in causing conscious suffering, because, as is pointed out in the full discussion in Thomas v. Lane, 221 Mass. 447, with ample citation of authorities, there is no duty arising out of a gratuitous making of repairs by a landlord to anybody except to the person or persons with whom the gratuitous undertaking was directly made. There can be no negligence unless there is a duty. Negligence consists in doing or omitting to do an act in violation of a legal duty or obligation due to the person sustaining injury. Minor v. Sharon, 112 Mass. 477, 487. Lebourdais v. Vitrified Wheel Co. 194 Mass. 341. Bernabeo v. Kaulback, 226 Mass. 128, 131. Mammott v. Worcester Consolidated Street Railway, 228 Mass. 282, 284. Savings Bank v. Ward, 100 U. S. 195, 202, 205. By way of precaution it may be added that, if the landlord does an act of gratuitous repair which creates a situation inherently dangerous, such as the presence of explosives without notice and such like conditions, there may be liability under the principle elucidated with full review of decisions in Thornhill v. Carpenter-Morton Co. 220 Mass. 593.
It is conceded that the railing, the breaking of which caused injury to the deceased, was out of repair.
1. We treat first the case presented by the first two counts. There was evidence tending to show in substance that the tenant during the summer of 1915, in the presence of the deceased, said to the son of the defendant that the rail of the piazza, which subsequently caused the injury, was unsafe and that he would move out if it was not fixed, and that the reply was that he “guessed there was no need to move out” and that he would see his father about it; that on the following Saturday the same son returned and made repairs upon the piazza and railing. As to the authority of the son to make these repairs, theré was considerable evidence to the effect that this son made repairs when [400]*400told to do so by his father, and that before the accident, in August, 1914 or 1915, this son had reported to his father that “the Bergerons . . . wanted some work done” and that he had authorized the son to make some repairs. There was much conflicting testimony and a contrary finding well might have been made. This was enough, however, to warrant a finding that the repairs to the railing were made by the son with the authority of the defendant, and that the reason for making the repairs was to induce the tenant to continue his occupancy of the premises, and thus that it was not a case of gratuitous repairs but of repairs made for a consideration. The construction sought tp be put upon the testimony by the defendant is too narrow. The case is distinguishable from Rolfe v. Tufts, 216 Mass. 563, and also from Kettleman v. Atkins, 229 Mass. 89, relied on by him. There was evidence that the repairs were made negligently and that this was the cause of the injury to the deceased. Upon this aspect of the case the plaintiff was entitled to go to the jury, because the wife of the tenant belonged to the class contemplated by the parties as entitled to use the demised premises. The case comes within the authority of Feeley v. Doyle, 222 Mass. 155.
There was, however, error in the trial respecting these two counts. Evidence of an alleged custom of landlords to make repairs similar in kind to that held inadmissible in Conahan v. Fisher, ante, 234, was admitted at the trial. It was pertinent to those two counts. It may have been the basis of the finding of the jury rather than the evidence to which reference has been made as sufficient to carry the plaintiff to the jury on those counts. Since there is no way of knowing whether the jury based their verdict solely on the competent evidence, the exceptions so far as concerns these two counts must be sustained. The custom in the case at bar is indistinguishable in nature from that held to have been rightly excluded in Conahan v. Fisher, ante, 234, where the question is discussed at large. For the reasons there pointed out, Shute v. Bills, 191 Mass. 433, affords no authority for the admission of such evidence.
2. We pass to the consideration of the last two counts. There was evidence sufficient to warrant a finding of gratuitous repairs made by the defendant to the tenement of Eli Bergeron, who was [401]*401the tenant and the husband of the deceased. As has been pointed out, that is not sufficient to make out a case for the plaintiff.
But there was additional evidence sufficient to support a finding of an undertaking with the deceased herself to make gratuitous repairs through the agency of the son of the defendant, whose authority in the premises has already been discussed. There was evidence to the effect that the deceased made request of the son of the defendant for the making of repairs on the piazza, that she spoke of the complaint of her husband of the unsafe condition of the piazza, that she was present and participated in the conversation with the defendant’s son when the statement was made by her husband that the tenement would be vacated, and “we would move out,” if the repairs on the piazza were not made, and that after the repairs were made the son of the defendant assured her that the piazza was safe. The defendant testified that his son reported on one occasion before the accident, “that he had been down to the Bergeron house and collected rents from the Bergerons and they wanted some work done; they want some repairs done; I told Willie to make the repairs that were asked.” Although the case is close upon this point, we are of opinion that this was sufficient to warrant a finding of a gratuitous agreement with the wife. Gill v. Middleton, 105 Mass. 477. Thomas v. Lane, 221 Mass. 447, 451.
There was no allegation of gross negligence in making the repairs. But no question of pleading appears to have been raised in this connection. The defendant asked for an instruction to the effect that the plaintiff could not recover unless there was an agreement between the defendant and the deceased “to make repairs, negligent making of them and an injury to her in consequence of such gross negligence.” This was not correct as to the death count, but it was sound as to the count for conscious suffering. It was enough to call the attention of the judge to the matter of gross negligence. He, however, made no distinction in his charge and instructed the jury that the plaintiff might recover if the defendant “undertook to make repairs in a gratuitous way for the wife, and he assured her the premises were safe after he made them, and she was injured as a result of negligence in making the repairs, even though gratuitously undertaken she may recover unless you find she was not in the exercise of due care.” [402]*402In this there was error. As the judge should have drawn the distinction between the degree of negligence which would warrant recovery between the count for death and for conscious suffering, that point must be sustained. Even though the request was not strictly accurate in the general form in which it was presented, it was sufficient to direct the consideration of the judge to an important principle of law not adverted to in the charge, an omission which well may have resulted in harm to the defendant. Bride v. Clark, 161 Mass. 130. Yancey v. Boston Elevated Railway, 205 Mass. 162, 172. Gascoigne v. Cary Brick Co. 217 Mass. 302, 305.
There was evidence of ordinary negligence in making the repairs which required the submission of the death count to the jury. There was no error in the instruction so far as this count was concerned. The error in admitting evidenceas to customwhichalready has been pointed out is not material upon the counts for negligence in performance of a gratuitous undertaking to repair. A fair construction of the charge shows that the jury were not misled in this respect, and that the evidence as to custom was confined to the counts referring to repairs made by virtue of a contract.
3. There was no error in the examination of the defendant called as a witness by the plaintiff. Taylor v. Schofield, 191 Mass. 1. Smith v. Boston Elevated Railway, 208 Mass. 186.
4. It could not have been ruled as matter of law that the plaintiff’s intestate assumed the risk. So far as that differs from want of due care in a case like the present it was an affirmative defence and the burden of proving it rested upon the defendant. Leary v. William G. Webber Co. 210 Mass. 68. It rarely can be ruled as matter of law that this burden of proof has been sustained. McDonough v. Metropolitan Life Ins. Co. 228 Mass. 450, and cases there collected. The case at bar does not fall within any of the exceptions to that rule.
The result is that there can be recovery for the amount found by the jury on the last count, which is for the death. The finding of the jury is to stand in this respect. This disposes also of the second count, which is for death based upon negligence in the performance of a contract with Eli, the husband of the deceased. The counts for conscious suffering and for death are essentially different in their nature and are combined for convenience in one action. McCarthy v. William H. Wood Lumber [403]*403Co. 219 Mass. 566. The exceptions must be sustained as to the counts for conscious suffering and the new trial is to be confined to those counts. St. 1913, c. 716. Simmons v. Fish, 210 Mass. 563.
So ordered.