Butler v. Western Union Telegraph. Co.

• Decision Date: 12 July 1928
• Docket Number: 1543-1928
• Parties: City of Butler v. Western Union Telegraph Company, Appellant
• Court: Pennsylvania Superior Court

93 Pa.Super. 533

City of Butler v. Western Union Telegraph Company, Appellant

No. 1543-1928

Superior Court of Pennsylvania

July 12, 1928

Argued April 16, 1928

Appeal by defendant from judgment of C. P., Butler County-1927, No 52, in the case of City of Butler v. Western Union Telegraph Company.

Trespass by a municipality to recover amount of judgment paid by it in a suit of one injured by falling on an icy sidewalk. Before Henninger, P. J.

The facts are stated in the opinion of the Superior Court.

Verdict for plaintiff in the sum of $ 1,043.43 and judgment thereon. Defendant appealed.

Error assigned was refusal of defendant's motion for judgment non obstante veredicto.

Edward Schreiner, and with him Zeno F. Henninger, for appellant.

John H Wilson, for appellee.

Before Porter, P. J., Henderson, Trexler, Keller, Linn, Gawthrop and Cunningham, JJ.

OPINION

LINN J.

The question is whether the city can recover the amount of a judgment paid by the city in the suit of one injured by falling on an icy sidewalk in front of the building, from the tenant of part of a building, which was also occupied and controlled by the owner. The affidavit of defense denied liability on the ground that the icy condition resulted from " a defective rainspout on the outside of said building, over which defendant had no control and was not bound to repair, the same being located on a part of the premises not leased by and not under the control of defendant."

The lease from the owner to the defendant described the leasehold as follows: " .... the ground floor front room, 18 x 55 feet in size, and the cellar of same size, situated in building located at No. 114 Jefferson Street .... with appurtenances ....," the owner to supply water, artificial light and heat, and agreeing " to keep said premises in good and tenantable condition, repair walls, floors, etc., and paint or paper walls and ceilings when necessary; but the [defendant] is to repair any damage to walls, glass or woodwork caused by negligence, carelessness or waste of its agents or employes." The room was to be occupied as a telegraph office. The lease provided that if the building or the part leased be destroyed, or become untenantable for any cause, the defendant may surrender possession without further liability.

It was a two-story brick building. The leased room was entered from the street front by a door " one step above the sidewalk." In addition to this front room, which did not take up the entire street frontage, there was a frontage described in the evidence as measuring between 6 and 7 feet, in which there was a door from the sidewalk entering into a hallway, furnishing access to a first floor hall, and thence by stairway to the second floor of the building. A witness for plaintiff testified that the owner occupied " the entire second floor and about seven feet of the first floor," -- referring to the hallway -- extending back " six or seven feet" from the front of the house. The water from the roof was collected and discharged into a downspout or pipe fastened to the outside of the building and extending from the roof down to the sidewalk, and discharging into the street at the curb by means of a pipe under the sidewalk. It appears that a long time before the accident, but during the tenancy, a hole was made in this upright pipe and that as water passed through the pipe a portion of it was discharged through this hole and flowed over the sidewalk. For several days before the accident for which the city was held liable this water had frozen on part of the sidewalk in front of the room leased.

The record of the suit against the city was offered in evidence, and established the existence of the nuisance, that the injured person was not guilty of contributory negligence, and the extent of the damage, the defendant having had notice of the trial with opportunity to appear and defend: Phila. v. Bergdoll, 252 Pa. 545, 548; City of Bradford v. Barry, 254 Pa. 303, 306. But the record of that trial did not establish that defendant was responsible for the nuisance. It, therefore, became necessary to a recovery in this suit, to show that defendant owed some duty which had not been performed, the breach of which caused the damage.

As we understand it, the trial court held defendant responsible, not by applying the general rule that an occupant of land abutting on the street is liable to third persons, but on the ground that defendant was within the provisions of an ordinance imposing liability.

Appellant claims immunity on the ground that the owner was in possession and in control of the building, and that appellant was merely a tenant of part of the interior, and that the nuisance resulted from a structural defect on the exterior, which it was the duty of the owner to repair, and with which the defendant had neither right nor duty to interfere. It also denies that it is within the scope of the ordinance.

We shall consider both branches of that defense. The general rule at common law is that the occupant of land, whether owner or lessee, is held responsible for its condition. Bears v. Ambler, 9 Pa. 193; Reading v Reiner, 167 Pa. 41, 43. It is also settled that " .... when premises are in good repair at the time they are let, and the landlord is not bound by the lease to keep them in repair, the tenant in possession, and not the landlord, is liable for an injury resulting from the failure to repair the pavement in front of the premises" ; Lindstrom v. Penna. Co., 212 Pa. 391, 393. As the owner in this case...