Gallagher v. Button

• Decision Date: 13 July 1900
• Citation: 46 A. 819,73 Conn. 172
• Parties: GALLAGHER v. BUTTON.
• Court: Connecticut Supreme Court

46 A. 819

73 Conn. 172

GALLAGHER

v. BUTTON.

Supreme Court of Errors of Connecticut.

July 13, 1900.

Appeal from superior court, New Haven county; Ralph Wheeler, Judge.

Action by Anna Gallagher against William Button. From a judgment in favor of plaintiff, and an order denying a motion in arrest of judgment and a motion for a new trial, defendant appeals. Reversed.

The complaint alleged that on the 5th day of December, 1898, the plaintiff was residing, as tenant, in a house owned by the defendant, at 232 Wallace street, in the city of New Haven, and which said house the defendant was bound to keep safe and in a tenantable condition for the plaintiff to occupy, and which said house the defendant had represented and stated to the plaintiff as being in good condition, safe, and in good repair; that on said 5th day of December, 1898, there was on the front part of said house, extending from the second story upward, a structure known and called a "fire escape," consisting of two flights of stairs on the outside of said building, on the front thereof, with a platform at the head of each flight, and said fire escape or flights of stairs were weak, decayed, rotten, unsafe, and insecurely attached to said building, and were allowed to become in said condition by the negligence and want of ordinary care of the defendant, and were known by him to be in the aforesaid condition, and, if not actually known by him to be in said condition, yet, from the appearance of the same, and the length of time they had been there, and the condition of said building as known to the defendant, the defendant ought to have known, and by the exercise of ordinary care could have known, that the said steps and said fire escape were weak, unsafe, and unfit for any person to walk or step upon; that on said 5th day of December, 1808, between the hours of 1 and 2 o'clock in the afternoon of said day, the plaintiff was obliged to go upon the platform or top part of said Are escape and flights of steps, in order to fasten back a blind of a window, which by negligence of the defendant had been left in such condition that it required said fastening back, and while the plaintiff was upon said steps and Are escape, and while in the exercise of due and ordinary care, said steps and Are escape suddenly gave away, broke, and came off said building, and suddenly fell to the awning roof over the store on the ground floor of said building, and by the breaking and giving away and falling of said steps and Are escape the plaintiff was thrown to the roof of said building with great violence. The defendant claimed that the platform had become weak by having been improperly used by the plaintiff and other tenants, and that he had not been negligent, but that the plaintiff had been guilty of contributory negligence. The case is sufficiently stated in the opinion.

Levi N. Blydenburgh, for appellant. Charles S. Hamilton, for appellee.

HALL, J. (after stating the facts).The plaintiff sued her landlord for a personal injury caused by the falling of the platform of a Are escape attached to the building which she occupied as a tenant, and upon which platform she had stepped in order to fasten a loose blind. It appeared that seven years or more before the accident the defendant had leased to the plaintiff certain rooms in the building, by the ordinary parol contract of leasing, without any express warranty or any agreement to repair,— the rent being payable monthly,—and that the plaintiff had continued to occupy them until the time of the accident without any further lease. The defendant requested the court to charge the jury that, "in the ordinary contract of letting, the law does not imply any guaranty on the part of the landlord that the leased premises are in a safe or inhabitable condition, since the tenent ordinarily has it in his power to inspect the premises, and so accepts the tenancy at his own risk." The court did not so charge, but upon that subject charged the jury that it was "the duty of the landlord, when he rents premises, to use all reasonable care to see that the premises have not so fallen into decay or become so dangerous that a person occupying the same is liable to be injured. It is further the duty of the landlord to comply with all statutory regulations, such as furnishing suitable fire escapes, and to use due diligence to put and keep them in reasonably safe condition; and if the landlord, when renting premises, rents them with fire escapes which he knows to be dangerous, or should and could have known to be so by the exercise of reasonable care, or if he fails to use reasonable diligence to keep Are escapes erected on the building in repair, he is liable for the injury resulting from their defective and unsafe condition, to a tenant making a legitimate and proper use of them, and in the exercise of ordinary care." The court should have charged substantially as requested, and the rule as laid down in the charge is incorrect. Under such an agreement of letting as that stated, and in the absence of any statutory provision affecting it, there is no implied warranty by the lessor that the premises rented are in a safe condition, or that they are suitable for the purposes for which they are hired; nor is there any implied agreement that he will keep in repair any part of the premises which are leased to, and placed in the exclusive possession and control of, the tenant. The general rule is that under such a contract the lessee takes the risk as to the condition and quality of the hired premises, and that the landlord...