Hinthorn v. Benfer

• Decision Date: 08 November 1913
• Docket Number: 18,311
• Citation: 136 P. 247,90 Kan. 731
• Parties: JESSE B. HINTHORN, Appellant, v. HUGH H. BENFER, Appellee
• Court: Kansas Supreme Court

136 P. 247

90 Kan. 731

JESSE B. HINTHORN, Appellant, v. HUGH H. BENFER, Appellee

No. 18,311

Supreme Court of Kansas

November 8, 1913

Decided July, 1913

Appeal from Brown district court; WILLIAM I. STUART, judge.

Judgment reversed new trial ordered.

SYLLABUS

SYLLABUS BY THE COURT.

1. LANDLORD AND TENANT--Defective Stairway--Personal Injuries--Duty of Landlord. A narrow porch or landing of an outside stairway used and intended for the use of different tenants of a building, and connected with a common hallway is part of the stairway itself and necessarily in the possession and control of the landlord; and he is bound to exercise reasonable care to render it safe for the use which he invites others to make of it.

2. Same. Whether the landlord in this case was guilty of negligence in failing to discover the defective condition of the landing was a question of fact for the jury, and it was error to sustain a demurrer to the evidence.

S. M. Brewster, of Troy, and Sample F. Newlon, of Hiawatha, for the appellant.

C. F. Reavis, of Falls City, Neb., W. F. Means, of Hiawatha, and W. E. Archer, of Horton, for the appellee.

OPINION

PORTER, J.:

To recover damages for the death of his wife, a tenant sued his landlord, alleging that her death was caused by the carelessness and negligence of the defendant in the construction and maintenance of the railing of a porch on the demised premises. The court sustained a demurrer to the plaintiff's evidence and rendered judgment against him for costs, from which he appeals.

The defendant owned a two-story stone building in the city of Hiawatha. The lower part was occupied for store purposes; the upper part was divided into two tenements separated by a hall running north and south, the house fronting north. The plaintiff rented the east side and the other side was occupied by another tenant of the defendant. The only way to enter the premises was by two stairways, one on the north and one on the south, both leading to the hall, which ran the whole length of the building. At the south and rear end of the hall a door opened upon a porch or landing place from which a stairway led to the ground. The hall and both stairways were used by the tenants in common. The rear porch was five feet wide north and south, and nine feet long east and west. The railing on the west side of this landing consisted of a two-by-four nailed to two uprights, one of which was fastened to the wall of the building. There was testimony tending to show that the end of the rail which rested upon the upright next to the building had become rotted and to some extent decayed, and that the nails by which it was fastened were rusted. The plaintiff and his family had occupied the premises as tenants of the defendant for more than ten years. On the night of the accident the plaintiff's wife took a broom and went out to sweep the snow from this porch. The evidence tended to show that she fell against or in some way came in contact with the railing, that it gave way, and she fell to the ground and was killed.

The defendant claims that for two reasons the demurrer was rightly sustained. First, it is claimed the evidence shows conclusively that the porch or landing place was not in the common use of both tenants, but that each tenant had the use and possession of one-half thereof; and that, since the landlord is under no obligations to repair premises in the possession and control of the tenant, he can not be held liable in this case. There was some evidence by the plaintiff that it was customary for his family to make use of that portion of the porch on their side of the doorway for the purpose of storing wood and household utensils, and that the other side was used in the same way by the other tenant. It is conceded that if the place was used as a common porch by both tenants, then it was in the possession and control of the landlord, and he was bound to exercise reasonable care to keep it in a safe condition. We have no hesitation in holding that this narrow porch or landing was as much in the common use of both tenants as was either the hall or the stairway itself. The mere fact that the tenants divided the use of the floor of the porch for the purpose of keeping some of their household effects separated was not, in our opinion, sufficient to show that half of the porch was in the possession of one tenant and half in the other. The stairway, which appears from the photograph in evidence to have been about four feet wide, led from the center of the landing,...