Richey v. Armour

• Decision Date: 16 April 1928
• Docket Number: 25
• Parties: Richey, Appellant, v. Armour
• Court: Pennsylvania Supreme Court

141 A. 841

293 Pa. 127

Richey, Appellant, v. Armour

No. 25

Supreme Court of Pennsylvania

April 16, 1928

Argued March 20, 1928

Appeal, No. 25, March T., 1928, by plaintiff, from order of C.P. Washington Co., Nov. T., 1925, No. 124, refusing to take off nonsuit, in case of Myrtle W. Richey v. Sarah F. Armour. Affirmed.

Trespass for personal injuries. Before CUMMINS, J.

The opinion of the Supreme Court states the facts.

Nonsuit refusal to take off. Plaintiff appealed.

Error assigned was order, quoting record.

The judgment is affirmed.

Lloyd O. Hart and John C. Judson, for appellant. -- A common stairway, or portion of a building used in common by separate tenants, is under the care of the landlord, and it is his duty to keep them in ordinarily good condition: Lewin v Pauli, 19 Pa.Super. 447; Shay v. Sherwood, 66 Pa.Super. 463; Prager v. Gordon (No. 1), 78 Pa.Super. 76.

This duty applies to customers of tenants: Sloan v. Hirsch, 283 Pa. 230; Folkman v. Lauer, 244 Pa. 605; Levin v. Phila., 277 Pa. 560.

Defendant was negligent in constructing and maintaining the outside, uncovered, common stairway under the overhanging edge and gutter of the roof, and the question of such negligence was for the jury: Wunder v. McLean, 134 Pa. 334; Folkman v. Lauer, 244 Pa. 605; Kane v. Lauer, 52 Pa.Super. 467; Levin v. Phila., 277 Pa. 560; Mullen v. McGeagh, 88 Pa.Super. 381.

Adolph L. Zeman, for appellee. -- The pleadings in this case limited the proof of negligence to defects in the original plan of construction of the building, and there was insufficient evidence to establish such negligence: Garver v. Lightner, 275 Pa. 401; Harte v. Jones, 287 Pa. 37.

There was no causal connection shown between the drip from the eaves and plaintiff's fall: B. & O.R.R. v. School Dist., 96 Pa. 65; Karchner v. R.R., 218 Pa. 309; Toole v. R.R., 27 Pa.Super. 577.

Before MOSCHZISKER, C.J., FRAZER, WALLING, SIMPSON, KEPHART, SADLER and SCHAFFER, JJ.

OPINION

MR. JUSTICE SCHAFFER:

Defendant is the owner of a property the second floor of which is leased to two tenants, one of them a dentist and the other a doctor. The approach to their offices is by an open outside stairway about thirty inches wide fastened to the side of the building. The eaves of the roof extend about ten inches over the stairway and there is a gutter along the overhanging edge. On February 21, 1924, plaintiff paid a visit to the dentist's office for treatment and on leaving it and proceeding down the stairway slipped on some ice which had formed, while she was in the office, from the drip from icicles on the eaves; she fell down the stairs and was injured. This suit was brought to recover damages and on the trial the judge entered a compulsory nonsuit; from the refusal to take it off plaintiff appeals.

Appellant contends that the stairway was a common one and that the duty rested with defendant as owner of the building to keep it in safe condition. It is charged that it was negligence to place the outside uncovered stairway under the overhanging eaves and gutter of the building, that defendant was bound to know that in Western Pennsylvania, in the winter, snow and ice will form on the roof of a building and choke up the gutter, causing water to flow onto steps such as were placed on the outside of this structure and thus create a dangerous situation for those using the stairway. The nub of the fault alleged is the construction of the steps under the edge of the roof, -- that the eaves did not completely cover them, but instead extended out only about one-third of their width.

We fail to comprehend how it could be declared negligent to construct outside stairways to a building, such means of access are quite common; nor do we see how eaves dripping on them can be said to be faulty construction. Dripping eaves are a concomitant of bad weather universally. Gutters along the edges of eaves will clog up from ice and snow and overflow under certain weather conditions. This is inherent in the nature of eaves and gutters, just as it is in roofs without them, and their maintenance could not ordinarily be held negligent. But if they should create a condition of danger which is obvious and exists for so long a time as to visit the owner of the premises with knowledge that some one may be hurt because of the condition, he might be visited with culpability; here, however, the...