Opinion
Decided November 5, 1929.
The furnishing of lights by the landlord for hallways used in common by the tenants of a building and retained in the landlord's control is a service which he is not required to render in the absence of agreement or statute, though the hallways cannot be safely used when unlighted. Quaere, if the need of lighting is due to a faulty plan or defective method of construction. A verdict cannot be sustained upon grounds of negligence available but not presented at the trial.
CASE, for negligence resulting in the death of the plaintiff's intestate. She was a tenant in the defendant's apartment building, and died from a fall down a stairway in an unlighted hall used in common by all the tenants of the building. The defendant excepted to the denial of his motion for a directed verdict, and, a jury giving the plaintiff a verdict, the court (Young, J.) transferred the exception.
Doyle Doyle (Mr. Paul J. Doyle orally), for the plaintiff.
Warren, Howe Wilson (Mr. Howe orally), for the defendant.
If the decedent's fall might be found attributable to the darkness of the hallway, recovery depends upon some duty of the defendant to maintain lights. The furnishing of lights by the landlord for hallways used in common by the tenants of a building and retained in the landlord's control is a service which he is not required to render in the absence of agreement or statute. Capen v. Hall, 21 R. I. 364; Gleason v. Boohm, 58 N. J. L. 475; Rhodes v. Company, 92 N. J. L. 569; Leech v. Company, 104 N. J. L. 381; Pitts v. Kelly, 234 Ill. App. 403; McKinley v. Niederst, 118 Oh. St. 334; Hilsenbeck v. Guhring, 131 N.Y. 674; Rohrbacher v. Gillig, 203 N.Y. 413; Blaufarb v. Drooker, 251 Mass. 201; Carey v. Klein, 259 Mass. 90; Polansky v. Heller, 241 Mass. 484, And this is the rule although the hallways may not be safely used when unlighted, at least if the need of lighting is not due to a faulty plan or defective method of construction. If the rule has this possible qualification, the record shows that the only ground of negligence raised at the trial was the failure to maintain lights, and under the rule that a verdict cannot be sustained upon grounds of negligence available but not presented at the trial (Bjork v. Company, 79 N.H. 402, 407; Gage v. Railroad, 77 N.H. 289, 296), the plaintiff's contention now made that the plan of construction was faulty may not be considered.
The case of English v. Amidon, 72 N.H. 301, has no bearing. A master's duty to his servants has never been a test of a landlord's duty to his tenants.
Judgment for the defendant.
All concurred.