Leonard v. Storer

115 Mass. 86, 1874 Mass. LEXIS 155

Opinion

Ames, J.

It does not appear that the defendant had any con-

nection with the injury complained of, except that he was the owner of the building in front of which it occurred. The whole of this building had been leased for a long term of years to a tenant who was in actual occupation at the time of the accident. By the terms of the lease, the tenant had bound himself to make certain specific alterations in the lower story of the building, and also to make at his own expense “ all needful and proper repairs, both internal and external, of the demised premises.” The lessee was the occupant of the entire estate, and, as between himself and the public, was bound to keep the building in such a state of repair that the adjoining highway should be safe for the use of travellers thereon. “ It is the occupier who is primé facie liable to third persons for damages arising from any defect.” Kirby v. Boylston Market Association, 14 Gray, 249, and cases there cited. The control of the tenant included the roof of the building, as well as its interior, and it does not appear that he might not have cleared the roof of snow by the exercise of due care, or that he could not by proper precautions have prevented the accident. We cannot say upon this report that any neglect of duty, or any wrongful act, on the part of the defendant, was the cause of the injury. In Shipley v. Fifty Associates, 101 Mass. 251, and 106 Mass. 194, it appeared that the roof was not in the control of the various occupants of the building, but of the owners, who were therefore held responsible for its condition. As the judgment of the court below does not appear to have been erroneous, it is therefore Affirmed.