Knight v. Foster

• Decision Date: 22 October 1913
• Citation: 163 N. C. 329,79 S.E. 614
• Parties: KNIGHT. v. FOSTER.
• Court: North Carolina Supreme Court

79 S.E. 614

(163 N. C. 329)

KNIGHT.

v.FOSTER.

Supreme Court of North Carolina.

Oct. 22, 1913.

1. Landlord and Tenant (§ 167*)—Injuries to Third Persons—Landlord's Liability.

A landlord is only liable to third persons for injuries caused by failure to repair the premises where he contracts to repair or knowingly rents the premises in a condition which is dangerous or amounts to a nuisance, or where he authorizes a wrongful act making the premises dangerous.

[Ed. Note.—For other cases, see Landlord and Tenant, Cent. Dig. §§ 668-674, 676-679; Dec. Dig. § 167.*]

2. Landlord and Tenant (§ 167*)—Injuries to Third Persons—Landlord's Liability.

A landlord who knowingly rented premises when the gate thereto swung outward so as to be dangerous to pedestrians was liable for personal injuries resulting from the condition of the gate seven years thereafter.

[Ed. Note.—For other cases, see Landlord and Tenant, Cent. Dig. §§ 668-674, 676-679; Dec. Dig. § 167.*]

3. Landlord and Tenant (§ 150*)—Repairs —What Constitutes—"Repair."

The changing of a gate which swung outward so as to make it swing inward would be a change in the condition of the premises, and not technically a "repair, " so that the duty of making it was upon the landlord.

[Ed. Note.—For other cases, see Landlord and Tenant, Cent. Dig. §§ 536, 538, 544-548, 555, 556; Dec. Dig. § 150.*

For other definitions, see Words and Phrases, vol. 7, pp. 6096-6102; vol. 8, pp. 7785.]

4. Nuisance (§ 6*)—Violation of Ordinance.

A continued violation of a valid ordinance constitutes a nuisance.

[Ed. Note.—For other cases, see Nuisance, Cent. Dig. §§ 35-38; Dec. Dig. § 6.*]

Appeal from Superior Court, New Hanover County; Justice, Judge.

Action by Eugene S. Knight against Gertrude S. Foster. From a judgment of nonsuit, plaintiff appeals. Reversed.

Ricaud & Jones, of Wilmington, for appellant.

Kelluin & Loughlin and John D. Bellamy & Son, all of Wilmington, for appellee.

CLARK, C. J. This is an action for damages sustained by coming in contact with a gate opening upon the sidewalk in front of certain premises in Wilmington owned by the defendant, which gate, the plaintiff alleges, had been left open and so long neglected, without any fastenings, that it had become permanently fixed in the sand on the sidewalk, and settled at the angle at which it stood August 29, 1911, when the plaintiff, rightfully using said sidewalk, in which the gate had become imbedded, and in ignorance of the danger, ran into said gate on a dark and rainy night, there being no light on the street, and sustained the injuries complained of. The defendant demurred to the evidence, upon the ground that the tenant and not the owner was liable, if any liability existed, and moved for nonsuit This motion was allowed.

There was evidence that the tenant was a monthly tenant, had rented the premises for seven years, and had repeatedly complained to the owner's agent of the impaired condition of the premises, but that the repairs promised him had not been made.

1 Jaggard, Torts, 223, thus sums up the law: "Normally the occupant and not the owner or landlord is liable to third persons for injuries caused by the failure to keep the premises in repair. The liability may, however, be extended to the landlord or owner (a) when he contracts to repair, (b) where he knowingly demises the premises in a ruinous condition or in a state of nuisance, (c) where he authorises a wrong." To same effect, 5 Dillon, Mun. Corp. (5th Ed.) 3028 et seq.

There was evidence from the tenant that the owner in this case contracted to do the repairing, and had promised time and again to repair the gate. There was evidence, also, that the owner knew of the ruinous condition of the premises, and that the gate had been in this condition for four or five months, and one of the witnesses testified that it had been in that condition for three years. We have found no case in which the landlord has been held not liable to a third person for an injury resulting from a street obstruction or a defect known to the landlord to exist at the time of the renting and permitted by him to continue.

It was in evidence that the ordinance of the city (section 40) adopted in 1902, and which is still in force, provides: "It shall be unlawful for any person to have on their premises a gate so constructed as to swing out on the sidewalk of any street or alley of the city of Wilmington, when open." This gate swung outward, and was in that condition when the premises were first rented to the present occupant seven years ago, which was at a date subsequent to the adoption of the ordinance. The liability for any...