HAROLD BRIDGES & another vs. BOSTON HOUSING AUTHORITY (and a companion case [Note 1]).

KIRK, J. The two minor plaintiffs (hereinafter called plaintiffs) were injured when struck in the face by a hot, black, tarlike substance which, coincidental with an explosion, came from an incinerator under the control of the defendant at one of its housing units.

The judge found for the plaintiffs. The defendant claimed a report to the Appellate Division and a consolidated report was dismissed. The case is before us on the defendant's appeals from the order of dismissal.

The report states: "It was agreed that on July 5, 1958, the parents of the . . . plaintiffs were tenants of the defendant under written leases each dated June 1, 1957 . . . [which are in evidence], and that the defendant was in control of the incinerator."

A summary of the evidence follows: The parents of one of the plaintiffs had been tenants of the defendant at the project since 1953; the parents of the other since 1954. The incinerator, including the door, was then in good condition. The inside of it was clean. The rubbish in it was pushed down and burned once or twice a day, and the incinerator was cleaned by the defendant's employee. The accident occurred July 5, 1958.

The part of the project where the plaintiffs lived consisted of two units. The area between the two was used as a play area and clothes yard. The incinerator was located at the end of one of the buildings adjoining the play area. The incinerator was of brick, with a chimney from the ground to the top floor. The door of the incinerator was opened from the top to about a forty-five degree angle from the vertical plane of the brick chimney in which it was placed; inside the incinerator was a chute; when rubbish was placed on the chute and the door released, the door closed automatically. Below the chute was a firebox about six feet by four feet, which led to an ashpit room about eight feet below the level of the door of the incinerator.

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Access to the door was gained by a platform which was two steps above the ground.

A week and a half before July 5, 1958, the hinge of the door of the incinerator was broken so that it could not be closed, and left an opening of six or seven inches at the top. At the same time the incinerator was so full of rubbish that the door was caused to remain open ten or twelve inches at the top. Complaint was made to the manager of the project on June 25, 1958, about the "mess" at the incinerator and the platform in front of it. The incinerator and platform were cleaned on June 27 and June 30. But by July 2, 1958, rubbish was "all piled up again" at the incinerator and platform and remained in that condition until July 5, 1958. On that day at 4 P.M. the mother of one of the plaintiffs found the incinerator jammed with trash. She burned it. When she left the incinerator at 5:15 P.M. the ashes were above the level of the door, and she could get the door only half shut. Shortly afterwards the two plaintiffs (a boy of eight years and a girl of seven years) were walking around the yard near the incinerator. They saw flames coming out of the top of the chimney. They ran to the incinerator. The boy climbed the two steps to the platform, and found the door of the incinerator open all the way. He tried to close it but was unable to do so. He was about to jump down from the platform when an explosion occurred sending "a whole bunch of black stuff . . . out of the incinerator" which hit both plaintiffs in the face. Trash and rubbish, some of which was charred and burned, were seen later in the vicinity of the incinerator.

The judge denied the following request for ruling made by the defendant in each case: "There is no evidence to warrant a finding that the . . . plaintiff sustained injuries as a direct and proximate consequence of the failure of the defendant to use ordinary care to keep the incinerator . . . in the condition in which it was or appeared to be at the time of the letting of the demised premises to the . . . [parents] of the . . . plaintiff" (emphasis supplied).

The judge made the following finding: "I find from the evidence that the injuries suffered by the plaintiff were the

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direct and proximate consequence of the negligence of the defendant in failing to use ordinary care in maintaining its incinerator in as good a condition as it was when the plaintiffs' parents became tenants of the defendant" (emphasis supplied).

We are of the opinion that there should be a new trial. In view of this disposition we shall not dwell upon the questions of causation or the status of the plaintiffs. The source of the difficulty lies in the latent ambiguity of the words "at the time of the letting" in the defendant's request and the equal ambiguity of the words "when the plaintiffs' parents became tenants of the defendant" in the judge's finding. While the legal significance of the two phrases may be the same, they both in context beg the question as to when in fact the tenancy commenced, and upon this fact the rights of the parties depend. "Where the facts on which the rights of the parties depend have not been ascertained at the trial it is within the power of the court in its discretion and of its own motion, to recommit the case for retrial." Comstock v. Soule, 303 Mass. 153, 159. Turgeon v. Turgeon, 326 Mass. 384, 386. Mark v. Kahn, 333 Mass. 517, 522. See Coletti v. Hart, 338 Mass. 174, 177-178.

Reading the report as a whole, we do not think that the recital "It was agreed that on July 5, 1958, the parents of the . . . plaintiffs were tenants of the defendant under written leases each dated June 1, 1957 . . ." means that the plaintiffs thereby intended that all the rights and duties of the parties, including the duty of the defendant with respect to the care and maintenance of the incinerator, should be fixed and measured as of June 1, 1957. Rather, we think it means that the plaintiffs admit the fact of the existence of the leases but assert their rights under the general relationship of landlord and tenant which began in 1953 for one and in 1954 for the other. If an entirely new tenancy began June 1, 1957, the plaintiffs could not, on the record, recover, because of the lack of evidence of the condition, care and maintenance of the incinerator at that time. The

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finding by the judge suggests an implicit subsidiary finding that the tenancies began in 1953 and 1954. But the recited evidence on this point is too meager to support that conclusion.

We think it should be made clearly to appear either by the disposition of the request, or by the finding, when the tenancy began. In the case of Chapman v. Standen, 302 Mass. 4, at page 6, it was said: "It would be unreasonable to hold that every trifling alteration in the premises demised or in the relations of the parties necessarily has the effect of an entirely new tenancy upon the standard of maintenance of all the appurtenances in the landlord's control and throws upon the tenant the burden of re‰xamining all of them or taking upon himself the consequences of the landlord's then unfulfilled obligations." Cf. Dreher v. Bedford Realty, Inc. 335 Mass. 385, 388, and cases cited; Wheeler v. Boston Housing Authy. 341 Mass. 510, 512. This principle and the nature of the particular installation persuade us that further inquiry must be made to resolve the doubt that the cases raise. The incinerator which the defendant admittedly controlled was a separate permanent structure, on the exterior of the building, specially designed and adapted to facilitate the disposal of trash and to promote sanitation on its premises by combustion. The landlord obviously intended that it be available as a receptacle for rubbish to all of the tenants in the units served by it, irrespective of where in these housing units the tenants lived.

Since we are unable to determine from the report whether the leases executed on June 1, 1957, made any alterations in the pre‰xisting relations of the parties and, if so, whether such changes were trifling or substantial, we think that the findings for the plaintiffs should be vacated. The order dismissing the report is reversed. A new trial is ordered. Wayland v. Ware, 109 Mass. 248, 251-252. G. L. c. 211, Section 8.

So ordered.