Ho question has been made as to the apparent variance between the plaintiff’s offer of proof and her declaration. Upon her offer of proof it was her husband and not herself who hired the tenement and became a tenant of the defendant. But this circumstance would not have prevented her from recovering upon a proper declaration if her husband could have recovered for a like injury to himself. Wilcox v. Zane, 167 Mass. 302. Domenicis v. Fleisher, 195 Mass. 281. We therefore consider the question upon its merits, as it has been argued by both parties.
The jury could find that the steps which the defendant was to put up and the box which he supplied for temporary use were, and were to remain, in his possession and control, and were intended for the common use of all the tenants in the house. If so, it was his duty, while the box remained in use as he had put it, to use reasonable care to keep it and the foundation of ashes and cinders upon which it rested in as safe a condition for its intended use as it was or appeared to be in when he put it there. Looney v. McLean, 129 Mass. 33. Andrews v. Williamson, 193 Mass. 92. But, as the plaintiff offered to show, it remained there for more than a month; it wobbled and shook upon the cinders under it and became worse 'as time went on. The defendant’s attention was called to its insufficiency, and he gave excuses for doing nothing at that time, but said “ that he would do it in four or five days.” He still did nothing, although thus notified of the state of affairs; and finally, when the plaintiff was using the box as the defendant intended it to be used, it *144turned over and threw her down, causing the injuries complained of. This would warrant a finding that the accident was due to a negligent failure on the defendant’s part to keep the temporary step in as safe a condition as when he put it there, and so would entitle the plaintiff to recover if she was in the exercise of due care. The case, would come within the rules laid down by our decisions. See for example Lydecker v. Brintnall, 158 Mass. 292, 297; Robbins v. Atkins, 168 Mass. 45; Harrinson v. Jelly, 175 Mass. 292; Lindsey v. Leighton, 150 Mass. 285; Cummings v. Ayer, 188 Mass. 292.
That the defendant’s duty to put up permanent cement steps rested merely upon his contract does not justify him in a negligent failure to keep the temporary substitute which he had provided from deteriorating and growing more unsafe than it was in the beginning. It was not a part of the construction or permanent arrangement of the premises, as in Quinn v. Perham, 151 Mass. 162, 163, Moynihan v. Allyn, 162 Mass. 270, Phelan v. Fitzpatrick, 188 Mass. 237, and other similar cases. The very fact that he allowed this merely temporary arrangement, intended to last only for a few days, to remain in use unattended to for more than a month, though aware of its growing insufficiency, might be found to show negligence. The liability which was enforced against a landlord in Miles v. Janvrin, 196 Mass. 431, and 200 Mass. 514, rested upon a contract. But the relation which in that case grew out of the contract between the parties, and by which the defendant was subjected to the burden of looking out for the safe condition of the leased premises, existed between these parties from the beginning, as to the steps and the substitute for them, by reason of the fact that they remained in the defendant’s possession and control.
The jury could have found that the plaintiff was in the exercise of due care. Faxon v. Butler, 206 Mass. 500. Frost v. McCarthy, 200 Mass. 445. Watkins v. Goodall, 138 Mass. 533. Dewire v. Bailey, 131 Mass. 169. Looney v. McLean, 129 Mass. 33.
It was competent for the plaintiff to testify that she was using special care at the time she was injured, and that though she did not think the box as safe as the steps would have been, she relied upon the assurance of the defendant that steps would be *145constructed in a few days, and thought until that time that she could get along with the box by using special care. This comes within the principle of Malcolm v. Fuller, 152 Mass. 160, and Carriere v. Merrick Lumber Co. 203 Mass. 322, 327.
New trial ordered.