"At
the trial the defendant presented, inter alia, two points
which were reserved. They are as follows:
"1.
Under the evidence of the plaintiff, the verdict must be for
the defendant.
"2.
Under all the evidence in the case the verdict must be for
the defendant.
"From
April 1, 1890, to April 1, 1892, the property known as
Harugari Hall, No. 48 South Sixth Street, Reading, was leased
to one Thomas Tracy, who carried on the saloon business
there. On the night of September 19, 1890, McNerney, coming
out of the saloon, fell into an areaway extending into the
sidewalk belonging to the property, was injured, brought suit
against the city and recovered damages. The proceedings in
this court upon appeal to the Supreme Court were affirmed.
(See case of McNerney v. City of Reading, 150 Pa
611.) The city in the present action, in reimbursement, seeks
to recover from the defendant the amount which the city was
compelled to pay.
"It
is contended there can be no recovery because of the lease to
Thomas Tracey and his possession thereunder; that it was his
duty and not that of Catharine Reiner to have closed the
areaway and kept it closed when not in use; that it was
reasonable and practicable for Tracey to have temporarily
during his tenancy, covered and guarded the areaway by means
of a loose slat door, hurdle, or other device; that by the
exercise of ordinary caution on his part it could have been
kept closed when not in use; that it was his duty to do so,
and that the owner of the property having so leased to Tracey
cannot be held responsible.
"It
is clearly shown and admitted that Catharine Reiner had
notice of the pendency of the action against the
municipality, and could have defended it. Therefore, in
accordance with the doctrine of Brookville Borough v.
Arthurs, 130 Pa. 501, she is held to be concluded as to
the existence of the defect or nuisance, as to the liability
of the corporation to the plaintiff in consequence thereof,
and as to the amount of damages the injury had occasioned.
But she is not estopped from showing that she was not under
obligation to keep the street in safe condition, and that it
was not through her fault that the accident happened.
"Was
she, then, under the admitted facts of this case, legally
liable to keep the areaway in safe condition? By the will of
John B. Reiner the property was devised to her absolutely.
Being thus absolute owner, she leased to Tracey, and the
relation of herself to Thomas Tracey was that of landlord and
tenant. For years previous to the creation of this tenancy,
and at the time of its creation, when Tracey was placed in
possession, and up to the time of the accident complained of,
the areaway was in precisely the same condition. In other
words, it is not a question of repair, but it is a question
of original construction and the original construction being
permitted to continue. The erection or maintenance of a
guard-rail, loose slat door, hurdle, or other device, is not
a matter of repair falling upon the tenant in the absence of
an agreement to the contrary. Repair means to restore to
sound and good condition after injury or partial destruction:
Pittsburg Railroad Co. v. Pittsburg, 80 Pa. 72. To
repair a building is to replace it as it was or to restore
after injury or dilapidation: Douglas v. Commonwealth, 2
Rawle, 264.
"In
Bears v. Ambler, 9 Pa. 193, the tenant in possession was held
liable for an injury resulting from the grate over a vault
under the highway in front of his premises being out of
repair, the law of the case being thus stated by Justice
ROGERS: 'A tenant or occupier is always liable for an
injury caused by his neglect, irrespective of any contract
between him and the landlord, or owner of the property. So
far as the public is concerned, it is nothing to them who may
be ultimately liable for repairs. It is the duty of the
tenant or occupier in the first instance to keep the ways in
such order as not to endanger others, whatever may be his
agreement with the landlord or owner of the premises. In the
absence of any contract to the contrary, the tenant is bound
to keep the premises in repair. The tenant always is, the
landlord may, under peculiar circumstances, be liable for an
injury sustained by a third person, arising from negligence.
It may be remarked that when the landlord leased the premises
the grate was in good repair.' See remarks of trial
judge.
"In
the case of Payne v. Rodgers, 2 H. Blackstone Rep.
349, cited by the Supreme Court in support of their ruling,
there was a verdict for plaintiff against the defendant as
the owner of a house in the occupancy of one Platt, his
tenant, for an injury sustained by the plaintiff by his leg
slipping through a hole in the foot pavement into a vault or
cellar, owing to some plates or bars which went under the
pavement being out of repair. It was urged the action ought
to have been brought against the actual occupier of the
house. It appeared, however, that there was evidence given of
repair actually done by the landlord, and it was held that
where it is shown it was the landlord's duty, under an
agreement to repair, there the landlord was liable as well as
the tenant.
"The
case of Coupland v. Hardingham, 3 Campbell, 398,
cited by counsel for the defendant, is also referred to,
wherein it was held that it is universally the duty of the
occupier of a house having an area fronting a public street
so to fence it as to make it safe to passengers, and although
the premises had been exactly in the same situation as far
back as could be remembered, many years before the tenant was
in possession, it was held that however long the premises
might have been in this situation, as soon as the tenant took
possession of them he was bound to guard against the danger
to which the public had been before exposed, and that he was
liable for the consequences of having neglected to do so in
the same manner as if he himself had originated the nuisance.
"But
the case nowhere exempts the landlord from liability, and
therefore, it is in strict accord with Bears v. Ambler,
supra, and the general current of authorities, that so far as
the public is concerned, it is nothing to them who may be
ultimately liable for repairs; that in a case of the present
character the tenant occupier as well as the city are equally
liable...
