
    Dora Polansky vs. Jacob S. Heller.
    Essex.
    March 23, 1922.
    June 9, 1922.
    Present: Rugg, C.J., Beamy, DeCoubcy, Crosby, & Jenney,,JJ.
    
      Landlord and Tenant, Common stairways, Liability of landlord for negligence. Nuisance.
    
    In the absence of a statute or an agreement, express or implied, the owner of a building, who, letting portions of it to tenants, retains control of the halls and stairways which are used in common by all the occupants of the building, is under no legal obligation to light the common passageways, either for the benefit of the tenants or of persons visiting them for business, social or other purposes.
    The owner of a building, who, letting portions of it to tenants, retains control of the halls and stairways which are used in common by all the occupants of the building, is not liable, on the ground that he is maintaining' a nuisance, to one who, visiting a tenant of the building on business, is injured by reason of an arrangement of unlighted stairways and halls which was obvious and which existed when the tenancy began.
    Tort for personal injuries received by the plaintiff when she fell down a stairway while in a building, numbered 63 on Salem Street in Boston and owned and controlled by the defendant, which she had entered for the purpose of doing business with a tenant of the defendant. Writ dated December 24, 1917.
    In the Superior Court, the action was tried before N. P. Brown, J. Material evidence is described in the opinion. At the close of the evidence, the judge ordered a verdict for the defendant and reported the action to this court upon the following stipulation: “If the case should have been submitted to the jury, then judgment is to be entered for the plaintiff in the sum of $250 costs and interest from the date of the writ; otherwise, judgment for the defendant.”
    
      M. J. McSweeney, W. II. McSweeney & A. Glovsky, for the plaintiff, submitted a brief.
    
      R. R. Heller, for the defendant.
   De Courcy, J.

The defendant owns a four-story brick building on Salem Street in Boston. The first floor is occupied as a store; the second is rented to one Silver, a tailor, for his business and residence; and the floors above are let by the defendant for dwelling purposes. Access to the upper portion of the building is through an entrance hallway, from which a flight of fifteen steps leads to the second floor. From the hall at the head of this stairway, a rear flight of steps leads down to the back door and yard. This second floor hallway is about three feet wide; and the rear stairway cuts into it, so that at the top it is within sixteen inches of the last riser of the front stairway. The plaintiff testified that one afternoon in November, 1917, she had occasion to go to the premises of Silver, on business; that she went up the front steps to the hallway on the second floor; that she took one step and her foot “went into the cut-in area of the back stairs and she was precipitated down the flight of back stairs.” There was evidence that the defendant retained control of the halls and stairways, which were used in common by all the occupants of the building; and that at the time of the accident there was no artificial light in said hallway, and but little illumination from the overhead skylight. The uncontradicted testimony of the defendant was that the building was in the same condition as when constructed and rented; that these hallways were lighted, if at all, by the tenants; and that he assumed no duty in this respect.

In the absence of statute or agreement a landlord is under no legal obligation to light the common passageways, either for the benefit of the tenants or of persons visiting them for business, social or other purposes. Dean v. Murphy, 169 Mass. 413. Jordan v. Sullivan, 181 Mass. 348. McGowan v. Monahan, 199 Mass. 296. Such an Agreement, express or implied, on the part of the landlord was shown in Gallagher v. Murphy, 221 Mass. 363, and in Maran v. Peabody, 228 Mass. 432. The same appears to be true of Marwedel v. Cook, 154 Mass. 235, and Faxon v. Butler, 206 Mass. 500, as is pointed out in Stone v. Lewis, 215 Mass. 594, 597.

The suggestion that by reason of the dangerous condition due to the original construction of the building the landlord might be found liable on the ground of nuisance, is untenable. The tenant took the premises as he found them; and the lack of provision for artificial light was obvious to him and to those coming upon the property to do business with him. See Stone v. Lewis, supra. In accordance with the terms of the report the entry must be

Judgment for the defendant.  