Lewin v. Pauli

• Decision Date: 14 February 1902
• Docket Number: 37-1902
• Citation: 19 Pa.Super. 447
• Parties: Lewin v. Pauli, Appellant
• Court: Pennsylvania Superior Court

19 Pa.Super. 447

Lewin v. Pauli, Appellant

No. 37-1902

Superior Court of Pennsylvania

February 14, 1902

Argued January 16, 1902

Appeal by defendant, from judgment of C.P. Lackawanna Co.-1896, No 287, on verdict for plaintiff, in case of Charles Lewin v Martha Y. Pauli.

Trespass to recover damages for personal injuries. Before Carpenter J.

At the trial it appeared that on July 4, 1896, Charles Lewin was injured by falling down a stairway in a house belonging to F. S. Pauli, and in which he rented a room. The circumstances of the accident are stated in the opinion of the Superior Court.

Defendant presented these points:

1. The plaintiff having set forth in his declaration a certain agreement of lease between himself and defendant, and alleged as his cause of action a violation of such agreement by defendant, and it appearing from such lease, now in evidence, that plaintiff, as tenant, covenanted to repair the premises, there can be no recovery by plaintiff for want of repair by landlord. Answer: Refused.

2. This is not a case of nuisance, but one of contract between the parties and is contained in the covenants of the lease. Under this agreement plaintiff agreed to repair the leased premises and he has no right of action against defendant for not doing what he himself agreed to do. Answer: Refused.

4. There is no evidence showing that plaintiff's injury arose from any defect in the stairs. Answer: There is no direct evidence in the case that plaintiff's injuries resulted from any defect in the stairs, but you have a right to find the fact from circumstantial evidence, if from all the circumstances surrounding the case you believe the injury was caused by a defect in the stairs.

5. Under the law and the evidence the plaintiff is not entitled to recover. Answer: Refused.

Verdict and judgment for plaintiff for $ 1,500. Defendant appealed.

Errors assigned were above instructions, quoting them.

Everett Warren and I. H. Burns, for appellant, cited: Bears v. Ambler, 9 Pa. 193.

R. L. Levy, with him George Horn, for appellee, cited: Looney v. McLean, 129 Mass. 33; Peil v. Reinhart, 127 N.Y. 381; 27 N.E. 1077; Brown v. Weaver, 17 W. N.C. 230.

Before Rice, P. J., Beaver, Orlady, W. W. Porter and W. D. Porter, JJ. Opinion by Beaver, J.

OPINION

BEAVER, J.

Plaintiff leased from defendant's testator a room on the second floor of a three-story building, the second and third stories of which were rented to different tenants who used a common stairway, in reaching their several apartments, which was the only one in the building. Plaintiff was found by a companion, from whom he had been separated for a few minutes, with the avowed purpose of closing the windows of his room, at the foot of the stairway, unconscious and suffering from several bruises in different parts of his body. By his side was a strip of wood between one and one half inches wide, the length of one of the steps of the stairway which corresponded to the part removed from a step, the eighth or tenth from the bottom. The accident occurred during the lifetime of the defendant's testator but statement was not filed, until after his death. The stairway was shown to be in bad condition which had been brought to the attention of the defendant's testator by a number of the tenants at different times, and promises to repair the same were repeatedly made. The plaintiff's mouth was closed by the death of his landlord as to what occurred at the time of the accident. No one being present who could testify, the jury were permitted to infer the cause of the accident from the circumstances and conditions surrounding the plaintiff at the time he was discovered by his companion. Several questions are raised by the appellant which will be briefly considered in their order.

1. The first question goes to the right of the plaintiff to recover and is thus stated in the question involved. The question is " Whether a tenant who rents a room, with privilege of hall and stairs for egress and ingress, and who covenants to repair, is estopped from maintaining an action against his landlord for injuries received from stairs being out of repair." The question thus stated is not sufficiently full, in view of the facts of the case. The real question is, " Can one of several tenants, who claim under separate leases and use a common stairway, recover in an action against his landlord for injuries resulting from the said stairway being out of repair?" If the plaintiff had been the sole occupant of the second and third floors which were reached by the common stairway, there would undoubtedly be force in the appellant's argument; but the landlord, being under obligations to furnish the means of ingress and egress by means of the stairway, was bound to keep the same in proper repair. Any other view of the respective rights of the landlord and tenants would lead to confusion and uncertainty and would place the responsibility for the maintenance of the stairway practically nowhere. In Looney v. McLean, 37 Am. R. 295; 129 Mass. 33, it was held: " Where a portion of a building is let and the tenant has rights of passageway over staircases and entries in connection with the landlord and other tenants, there is no such leasing as will exonerate the landlord from all responsibility for the safe condition of that portion of which he still retains control and which he is bound to keep in repair. As to such portion he still retains the responsibilities of a general owner to all persons, including the tenants of his building: Leavitt v. Fletcher, 10 Allen 119; Foster v. Peyser, 9 Cushing, 242; Readman v. Conway, 126 Mass. 374; Milford v. Holbrook, 9 Allen 17." So it was held in Peil v. Reinhart, 12 L. R. A. 843: " Permitting stairway carpet with holes in it to remain on the stairs of a tenement house, with notice of its condition, renders the owner liable for injuries to a tenant from a fall caused by catching her foot in one of the holes." In Dollard v. Roberts, 14 L. R. A. 238, it was held that " the fall of plaster, from the ceiling of a hallway in a tenement house used in common by various tenants, renders the landlord liable for injuries to an occupant of the building who is struck and injured thereby, if the landlord had notice that there was danger of its falling." The remarks of Bradley,...