Widing v. Penn Mut. Life Ins. Co.

• Court: Minnesota Supreme Court
• Writing for the Court: LOVELY
• Citation: Widing v. Penn Mut. Life Ins. Co., 95 Minn. 279, 104 N. W. 239 (Minn. 1905)
• Decision Date: 23 June 1905
• Parties: WIDING v. PENN MUT. LIFE INS. CO.

95 Minn. 279

104 N.W. 239

WIDING

v.PENN MUT. LIFE INS. CO.

Supreme Court of Minnesota.

June 23, 1905.

Appeal from District Court, Hennepin County; Willard R. Cray, Judge.

Action by Hilda Widing against the Penn Mutual Life Insurance Company. Judgment of dismissal. From an order denying a new trial, plaintiff appeals. Reversed.

Syllabus by the Court

The owner of a city apartment house rented the flats therein to tenants for housekeeping purposes. For several years the children of the occupants had been allowed to play on the porches without reference to the relative occupancy of the adjacent apartments by their parents. Around these porches was a rail balustrade, which had become defective, and had been repaired by the janitor in charge of the building. Two weeks afterwards it again broke, and was repaired by the tenant of the adjacent flat. A child 6 1/2 years of age, the daughter of one of the tenants, while on a visit to the flat having the defective porch, in playing with a companion ran against the same, was precipitated to the ground and injured. Held upon the facts:

1. That the injured child was not a trespasser, or in a legal sense a mere licensee.

2. That it was the duty of the owner of the building to exercise ordinary care to maintain the railings around the porches where the children were permitted to play in a reasonably safe condition for use.

3. That whether, under the facts in this case, the defendant was liable for the injuries to the child, was a question for the jury. Trafford N. Jayne, for appellant.

Keith, Evans, Thompson & Fairchild, for respondent.

LOVELY, J.

The plaintiff, the mother of a female infant child (the father having died) brings this action to recover for injuries sustained by the infant. At the close of the plaintiff's testimony defendant moved for a dismissal, which was granted. A new trial was asked, which was denied. From this order plaintiff appeals.

The evidence reasonably tends to support the following facts: The infant was 6 1/2 years of age at the time of the accident. Her mother rented of defendant an apartment, which was one of numerous suites of flats of a large building fronting on Washington avenue, in Minneapolis. There were two stores on the ground floor. Above the stores were 16 flats. Plaintiff had one apartment of six rooms on the third floor, fronting on Washington avenue. This was a front suite, which had no porch directly connected. In the rear were similar apartments, to which were attached open porches above the first floor, each porch being 150 feet in length, 5 feet in width, two in number, one above the other. There were halls adjacent to the different apartments, and easily accessible to the tenants of the building who occupied the same for household purposes. The usual relation between the different apartments existed, and tenants could go from one to the other without passing into the street. While the plaintiff's rooms were not attached to the rear porch, she was allowed privileges thereon for placing wood and other conveniences usual in household purposes. There was in connection with the suites a janitor, who had taken care of the building and apartments for three years previous to the accident. On the second floor below, in the most distant flat from plaintiff's apartments, her child was playing with a neighboring child on the back porch. Around this porch was a balustrade or railing some three feet in height, which would have afforded a reasonable...