Kirchner v. Smith

• Court: Pennsylvania Supreme Court
• Writing for the Court: MR. JUSTICE POTTER:
• Citation: Kirchner v. Smith, 207 Pa. 431, 56 A. 947 (Pa. 1904)
• Decision Date: 04 January 1904
• Docket Number: 27
• Parties: Kirchner v. Smith, Appellant

56 A. 947

207 Pa. 431

Kirchner v. Smith, Appellant

No. 27

Supreme Court of Pennsylvania

January 4, 1904

Argued October 21, 1903

Appeal, No. 27, Oct. T., 1963, by defendant, from judgment of C.P., Washington Co., Aug. T., 1902, No. 98, on verdict for plaintiff in case of Anna M. Kirchner v. William W. Smith. Affirmed.

Trespass to recover damages for personal injuries. Before TAYLOR, J.

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

The court charged in part as follows:

[The entrance to the steps at the upper end of this house is over this grating way, or by making a little detour out onto the brick portion of the pavement or sidewalk, you leave the grating and can approach the front steps squarely in front of the house.]

[The manifest purpose of the erection of that areaway and grating over it was to afford the owner of that double dwelling a means of getting light, as I said, and ventilation in and through this areaway into the basement of this building and at the same time make it a safe way of travel within the line of the sidewalk for all pedestrians lawfully using the street or having occasion to go in and out of this double dwelling.]

The defendant presented these points:

2. Even if the jury believe from the evidence that Mrs. Thompson prior to the accident but after she had taken possession under the lease, notified the defendant that the grating was out of repair or had slipped from its position, so as to leave a hole alongside the step, the uncontradicted evidence being that at the time of the letting the grating was in repair, plaintiff cannot recover, and the verdict must be for the defendant. Answer: Refused, under the evidence in this case; this is purely a question of law: Brown v White, 202 Pa. 297. [3]

3. The uncontradicted evidence being that the grating at the time of the letting was in perfect repair and that it became dilapidated or out of position during the tenancy of Sarah J. Thompson, she alone is liable, the lease itself showing no covenant on the part of the landlord, and the verdict should be for the defendant. Answer: Refused under the evidence in this case. That is purely a question of law: Brown v. White, 202 Pa. 297. [4]

4. If the jury find from the evidence that the plaintiff had passed in and out of the door and over the step and in direct view of the place of the alleged defect in the grating for some two months prior to the accident, the inference is that she knew of its existence, and was bound to take precaution to guard against accident, and the lack of such precaution would constitute contributory negligence, so as to preclude recovery in this action, and the verdict must be for the defendant. Answer: Affirmed, if the jury find from all the evidence that the plaintiff knew, or ought reasonably to have known, the hole was there before the alleged accident. [5]

6. The statement in this case alleges that the accident took place in the public traveled part of the sidewalk. The evidence of the plaintiff herself discloses the fact that she was not using the sidewalk, and that the accident did not occur by reason of such use, but in an attempt to reach the window of the house from the front step, in an unusual manner and one which the defendant could not likely have foreseen; the allegation not being supported by the proof, plaintiff cannot recover in this action, and the verdict must be for the defendant. Answer: Refused; it is for the jury to say from all the evidence in the case. [6]

8. Under all the pleadings and evidence in this case the verdict must be for the defendant. Answer: Refused. The case is for the jury under all the evidence in the case, and under the instruction of the court upon the law of the case. [7]

Verdict and judgment for plaintiff for $5,000. Defendant appealed.

Errors assigned were (1-7) above instructions, quoting them.

The assignments of error are all overruled, and the judgment is affirmed.

T. E. Birch, with him A. M. Linn, for appellant. -- If the grating had become dilapidated after the taking possession by Mrs. Thompson, but was in perfect repair at the time of the creation of the tenancy, in the absence of a covenant to repair in her lease, she was bound to repair it: Bears v. Ambler, 9 Pa. 193; Navigation Co. v. Richards, 57 Pa. 142.

The allegata and probata do not agree: Funk v. Arnold, 3 Yeates, 428; Good v. Mylin, 8 Pa. 51; Dixon v. Butler Twp., 4 Pa.Super. 333.

Plaintiff was guilty of contributory negligence: King v. Thompson, 87 Pa. 365; Stackhouse v. Vendig & Co., 166 Pa. 582.

W. S. Parker, with him Winfield McIlvaine, for appellee.

Before MITCHELL, C.J., DEAN, FELL, BROWN, MESTREZAT and POTTER, JJ.

OPINION

MR. JUSTICE POTTER:

The defendant was the owner of a three-story brick dwelling house located in the borough of Washington, Pennsylvania. This house was built upon the line of the sidewalk, and the lower story was a basement, with two windows below the sidewalk. In order to admit light and ventilation into these windows, the owner dug out next the foundation wall and into the sidewalk an areaway about three and one half feet wide and ten feet long. This was covered by an iron grating on a level with the pavement, which originally extended over the entire areaway. Subsequently, owing to the areaway being made longer by a change of grade in the sidewalk, or from some other cause, there came to be an open space at the upper end of the grating alongside the front steps of the house, four inches or more in width, extending across the areaway.

In January, 1900, the defendant leased the premises to Mrs. S. J. Thompson for the term of one year from April 1, 1900, and the lease was renewed for a second year. There was no covenant as to repairs in the lease, but the lessee testified that before she signed it, the lessor promised by parol to make whatever repairs were necessary on the house, and actually did make certain repairs. The lessee also testified that, when she moved into the house in April, 1900, she believed that the opening was at the end of the grating, but she could not say positively. The defendant testified that he had no knowledge of the opening at the time Mrs. Thompson leased the premises, and did not know whether it was there or not. Mrs. Thompson also testified that in the summer or fall of 1901 she called defendant's attention to the dangerous condition of the grating, and he said he would repair it later on.

The plaintiff, Miss Anna M. Kirchner, a professional masseuse and nurse, rented a room in the house referred to from Mrs Thompson about September 9, 1901, and remained there until the date of the accident, three months later...