Harpel v. Fall

• Decision Date: 27 January 1896
• Docket Number: 9547--(14)
• Citation: 65 N.W. 913,63 Minn. 520
• Parties: LENA HARPEL v. AMELIA B. FALL
• Court: Minnesota Supreme Court

65 N.W. 913

63 Minn. 520

LENA HARPEL v. AMELIA B. FALL

Nos. 9547--(14)

Supreme Court of Minnesota

January 27, 1896

Appeal by defendant from an order of the district court for Hennepin county, Russell, J., denying a motion for a new trial, after a verdict in favor of plaintiff for $ 2,000. Reversed.

Order reversed, and a new trial granted.

White & Egelston, for appellant.

Freeman P. Lane, Wm. H. Briggs, and Lane & Nantz, for respondent.

OPINION

START, C. J.

This is an action to recover damages for injuries sustained by the plaintiff in falling through a hole in a porch, which ran along the rear of the second story of a building owned by the defendant. There was a verdict for the plaintiff, and the case comes to this court on appeal by defendant from an order denying her motion for a new trial. The only alleged error which it is necessary for us to consider is that the verdict is not justified by the evidence, and is contrary to law.

The evidence shows that the defendant was the owner of a three-story brick building, and that she leased to a Mrs Dunlap certain flats on the second floor thereof, adjoining the porch in question. The plaintiff leased from Mrs. Dunlap one room in her flats. The rear porch along the second story of the building was 4 feet 9 inches wide, with a railing 2 1/2 feet high. A door opened from the hallway of the second story to the porch, and directly in line with this door, and at the edge of the porch, a stairway led to the ground. On the left side of the door, and 5 feet therefrom, there was an opening in the floor of the porch 3 feet square, with a smokestack 18 inches in diameter, extending from the ground up through the porch, leaving an uncovered hole in the floor on one side of the stack, large enough to permit a person of the size of the plaintiff to drop through. The defendant had knowledge of the existence of the hole, for it was in the floor when Mrs. Dunlap rented her flats, and it was open unconcealed, and apparent to any one passing along the porch and so remained without change until after the plaintiff's injury, except that she claims that there was a movable box over it the last time she was near the stack prior to the accident. The plaintiff on June 29, 1893, and while she was still a tenant of Mrs. Dunlap, with her consent went upon the porch, near the stack, there to do some washing in some tubs belonging to Mrs. Dunlap, and, in passing around one of the tubs, fell through the hole, and sustained the injuries for which she seeks to recover damages in this case.

The evidence is silent as to the terms of the lease from the defendant to Mrs. Dunlap, and leaves in doubt the question whether that part of the porch through which the plaintiff fell was included in the demised premises as appurtenant thereto. Counsel for the defendant assumes that it was, and counsel for plaintiff seem to so concede, for they state in their brief that the first question in the case is, "Was it the duty of the defendant to keep the premises in a reasonably safe condition for occupancy?" and, further that "there can be no question about the general rule that in all cases a landlord is bound to keep his premises in a reasonably safe condition, unless the tenant assumes that duty, and waives his right to insist on that obligation," and again: "There was certainly in this case evidence introduced competent for the jury to consider on the question whether the landlord kept the premises in a reasonably safe condition for the purposes of the subtenancy." The evidence shows that the porch, at the place where the accident occurred, was not used by the tenants of the building in common as a way of ingress or egress, or for any other purpose. It also shows that Mrs. Dunlap used it for the purpose of doing her washing, and that at the time of the accident the plaintiff was there, by the permission and in the right of Mrs. Dunlap.

It is clear from this statement of the evidence and facts in this case that if the proposition is correct, which is urged by plaintiff's counsel, to the effect that in all cases a landlord is bound to keep the demised premises in a reasonably...