CECELIA A. COAN vs. ROGER E. ADAMS & another.

RONAN, J. The defendants, the owners of an apartment building, excepted to the refusal of the judge to grant their motion to direct a verdict in their favor in this action of tort brought by the plaintiff to recover damages alleged to have been sustained by her as she was leaving the premises after visiting a tenant who occupied one of the apartments.

There was evidence that the plaintiff's nephew, one Ferraro, and his wife had occupied a first floor apartment in this four story building for nearly a year before the accident which occurred at about nine thirty o'clock daylight saving time on June 8, 1951. The plaintiff had entered the apartment by the front entrance and had gone there for the purpose of making arrangements for transportation for herself to the wedding of another nephew which was to be held on the following day. She left through the rear or kitchen door which directly led to a porch which was used in common by twenty-one other tenants. After walking five or ten steps along the porch she came to a wooden stairway consisting of four steps which led to a cement platform twenty-seven inches square. Leading from this platform were the cellar stairs which were more or less a continuation of the stairs leading from the porch to the platform. Her

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short journey along the porch was lighted pretty well by the light from the kitchen. As she descended the stairway leading to the platform the real darkness started and it was pitch dark when she reached the platform, and she exclaimed to Mrs. Ferraro that it was so dark there that one could break a leg. The plaintiff took one step toward what she assumed to be the yard and fell into the cellar.

There was a light attached to one of the posts which apparently was one of the supports to the upper piazzas but this light was out at the time of the accident and, although designed to be operated automatically, it had not been working for a week before the accident.

This rear entrance served as an entrance to and exit from apartments other than the one occupied by Ferraro. There is no question that it remained in the possession and control of the defendants. The plaintiff makes no complaint of physical defect or dangers arising out of the structural arrangements of the locus of her accident. The only breach of duty of which she complains was the negligent failure of the defendants to illuminate the place of the accident by the fixture that they maintained there. In the absence of an express or implied agreement to furnish light in a common passageway or a statute or ordinance imposing that duty upon a landlord, there is no obligation upon a landlord to do so. Polansky v. Heller, 241 Mass. 484. Carey v. Klein, 259 Mass. 90.

The jury adopting the view of the evidence most favorable to the plaintiff could find that the defendants impliedly assumed an obligation to light the premises. In the first place it could be inferred that it was a matter of good business to attract tenants and keep their apartments occupied by lighting the stairway leading to the porch for those who had occasion to use the yard as an incident to the occupancy of their apartments. In the next place, it could be found that the operation of the light was under the control of the defendants' janitor. There was no evidence that it could be controlled by a pull chain or push button within the reach of any tenant or that the current for its

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operation was attached to the meter of any tenant, but on the contrary the evidence was that it was operated automatically and the time of its operation could be set or regulated by the janitor. When it failed to operate for a week before the accident, it prompted a complaint upon the part of a tenant. Finally the light was in operation when the apartment was let to the plaintiff's nephew and up to a week before the accident. On the whole evidence, a jury could find that the defendants had impliedly undertaken as a part of the letting to keep the locus lighted and they had negligently failed to perform this obligation. Gallagher v. Murphy, 221 Mass. 363, 365. Donnelly v. Larkin, 327 Mass. 287, 290. Miller v. Berk, 328 Mass. 393, 396. McDonald v. Yogel, 329 Mass. 492, 494.

There is nothing in the contention of the defendants that they owed no higher duty to the plaintiff at the time of the accident than they did to a licensee. She was upon the premises as an invitee of the tenant. This is an action not by a social guest against her host, the tenant, but against the landlord. Compare Comeau v. Comeau, 285 Mass. 578; O'Brien v. Shea, 326 Mass. 681.

The answer alleged and the defendants contend that the plaintiff as matter of law was guilty of contributory negligence. To be sure she was not familiar with the site. Whether she should have attempted to retrace her steps or stood still until assistance came were for the jury. She had called out to Mrs. Ferraro, whom she had just left, that it was dark where she was on this small platform. The jury could find that Mrs. Ferraro was within easy hearing distance but the record does not show that she made any reply to the plaintiff. They could find that the plaintiff could reasonably expect a warning from her if the plaintiff was in any danger. The jury could also find that the plaintiff acting reasonably might not expect that an open cellar stairway would adjoin the edge of the small platform upon which she was. In such circumstances, we are of opinion that it could not be ruled that she was contributorily

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negligent. Marwedel v. Cook, 154 Mass. 235. Barttro v. Watertown Square Theatre, Inc. 309 Mass. 223. Sodekson v. Lynch, 314 Mass. 161. Tetrault v. Ghibellini, 316 Mass. 477. Donnelly v. Larkin, 327 Mass. 287. O'Brien v. Peterson, 329 Mass. 427.

Exceptions overruled.