IV. As it will be necessary to reverse and remand the cause for the errors already noticed, it may be of service in connection with further proceedings in the trial court to briefly state the rule of contributory negligence as applicable to this particular class of cases. The plaintiff was, at the time ofContributory her injuries, as tenant of the premises from monthNegligence. to month, entitled to use all these steps, not only for personal access to her own premises, but for the access of others having business or social relations with her which might make it necessary or desirable to her. All such persons passing in such capacity to and from her flat were, by the fact of her tenancy, entitled to reasonable care on the part of the owner of the premises with respect to such conditions of safety. She had paid her rent in advance and her title to these facilities was complete. The free and constant use of these steps was necessary to the enjoyment of her own residence, and the law does not require her to cease that enjoyment the moment the owner chooses to permit it to become dangerous. While the approach is in the possession of the owner, the casement is a part of her own premises, and the tenant may still continue to use it in the exercise of reasonable care, to be determined in view of the extent and nature of the danger created by the owner's neglect or refusal to perform his duty, and her own right of enjoyment. [Home Realty Co. v. Carius, supra; Looney McLean, 129 Mass. 33.] If upon due notice or with knowledge of such dangerous condition he still fails to make the necessary repairs she is not bound to vacate the premises and resort to her suit in damages for relief, but may, in the exercise of such care as is indicated by the danger, continue to use the premises if practicable to do so with reasonable safety. The landlord may not set a deadfall before the front door of his tenant, and claim exemption from damages for the consequent inmanner *Page 658
that when she shortly thereafter passed down said steps and went upon said tread it became displaced and caused her to fall, then plaintiff is not entitled to recover." This was equivalent to a peremptory instruction to find for defendant. It requires no argument to demonstrate that this was error. It does not submit to the jury the question of negligence in meddling with the step, but assumes that if, as she testified, she moved the loose end out six or seven inches and then put it back in the position it had occupied before, or, as the Hogans testified, picked it up and showed it to them and then put it back where it was before, she committed an act of negligence and fixed her own responsibility for the injury, notwithstanding that she placed it in the same position that she found it. In other words, if she meddled with it at all, even in the interest of her own safety, the owner was released from all liability for negligence in creating a situation so dangerous that safety required its correction. This principle would lead to the conclusion that no person could recover for an injury received in an attempt to remove the trap set for him. He must first step into it.