ELIZABETH FALDEN vs. LEO GORDON.

QUA, C.J. This is an action of tort by a tenant at will against her landlord to recover for personal injuries sustained on January 24, 1950, as the result of slipping on ice on the top step of an "exterior common stairway" leading down to the street from the entrance of a brick building in that part of Boston called Roxbury. The plaintiff rented one apartment in the building. A motion by the defendant for a directed verdict in his favor upon the pleadings and the evidence was denied, and a verdict was returned for the plaintiff.

The plaintiff's amended declaration was in two counts. The first count alleged the cause of the plaintiff's fall to have been an artificial accumulation of ice brought about by a discharge of water from a ledge over the stairway, which accumulation the defendant had negligently caused and had negligently permitted to exist for an unreasonable time. No liability was proved under this count. From a photograph admitted as an exhibit, taken in connection with oral evidence, it appeared that the door of the entrance was slightly recessed with reference to the brick front of the building and was surmounted by a brick arch resting on brick supports at the sides of the entrance. The arch and its supports protruded slightly from the face of the wall. The top of the arch was covered by two straight capstones slanting from the center toward the respective ends of the

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arch. If this form of construction had anything to do with the production of an artificial accumulation of ice on the top step under the arch, it was, so far as appears, in existence when the tenancy began, and the landlord by merely renting the premises assumed no responsibility for ice produced by it. Woods v. Naumkeag Steam Cotton Co. 134 Mass. 357. Hannaford v. Kinne, 199 Mass. 63. Webber v. Sherman, 254 Mass. 402. Rogers v. Dudley Realty Corp. 301 Mass. 104, 106. Bailey v. Golburgh, 320 Mass. 309.

The second count of the plaintiff's amended declaration, however, alleges that as part of the contract of letting the defendant expressly agreed to keep the stairway clear of snow and ice and negligently permitted the ice upon which the plaintiff slipped to accumulate and to remain upon the step. The plaintiff testified in substance that when she applied for the apartment the defendant said there was janitor service, and that the stairs were kept clean, the snow shoveled, and salt put down. If we assume that this was evidence of the agreement declared upon, such agreement must nevertheless be reasonably construed. It was not an agreement to change the construction of the building so that snow could not fall or ice form upon the step. It was at most only an undertaking to remove such snow or ice as accumulated there. And the defendant would be liable on this second count only for negligent failure to perform this second count only for negligent failure to perform this undertaking. Nash v. Webber, 204 Mass. 419, 424-425. Erickson v. Buckley, 230 Mass. 467, 470. Allan v. Essanee, Inc. 309 Mass. 1. Hebb v. Gould, 314 Mass. 10, 14-15. Carey v. Malley, 327 Mass. 189, 193. Miller v. Berk, 328 Mass. 393, 396-397.

The point of difficulty in the case is whether there was any evidence of such negligent failure. Testimony of the plaintiff that in December of 1949 or January of 1950, "there was quite a bit of snow and ice on the steps that had not been cleaned and for several days there was a lot of ice at the top step" does not help, since it is too indefinite and not related to the time of the accident. The best evidence from the point of view of the plaintiff was her testimony

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that "on the night of the accident the top step was coated with ice and the remaining steps had snow on them" and that she had noticed icicles hanging from the ledge "for several days before the accident, and during the warm part of the day the icicles would drip onto the top step and would freeze when the weather got cold enough." On the other hand, the photograph shows that the arch projected somewhat beyond the front of the step on which the plaintiff slipped, so that water dripping from or running down the face of the arch would not fall upon this step unless blown toward it or diverted in some other way, and the record of the weather bureau for January 24 shows that freezing rain and drizzle began in Boston at 8:35 P.M., and that "glaze and ice formed quickly on all road surfaces." The time when the plaintiff attempted to descend the steps does not appear, except for the reference in her testimony to "the night of the accident." There was no evidence that the steps had not been salted or sanded. Upon careful consideration of the evidence we are of opinion that it was not shown that the ice on which the plaintiff claims she slipped came from dripping icicles which the plaintiff testified she had previously seen rather than from recent snow or freezing rain and drizzle, and that it was not shown that the condition of which she complains had existed long enough before the accident so that in the exercise of proper care the defendant ought to have discovered and remedied it. See Walsh v. Schwoerer, 312 Mass. 593.

The plaintiff bases part of her argument upon the absence of a rail which she claims was in place when she hired the premises, but it does not appear that this rail had ever been in a position to be reached by a person who had not advanced beyond the recessed top step, and absence of the rail is not set forth as a ground of liability in either count of the declaration.

We think that the defendant's motion for a directed verdict in his favor ought to have been granted.

Exceptions sustained. Judgment for the defendant.