151 A. 315 | Conn. | 1930
The plaintiff occupied as tenant the second floor of a two-family house owned by the defendant who himself lived on the first floor. The rear entrance to the second floor tenement was by way of a stairway from a rear verandah on the first floor to a rear verandah on the second floor. There were two wooden steps built into the rear verandah on the first floor at the foot of which there was a slab of concrete or cement about three feet by two and a half feet set upon the earth, which, together with the two steps, furnished the approach to the rear verandah used by the occupants of both floors to reach their respective tenements from the rear. The plaintiff claimed that as she was coming down from her apartment to the rear yard of the premises she stepped upon this slab which was cracked and the earth under one corner of which had been washed out by the rain, and that the slab broke off causing her to fall and receive the injuries of which she complains. The defendant appeals from the denial of his motion to set aside the verdict in favor of the plaintiff and for claimed errors in refusing to charge the jury as requested and in the charge as given.
The complaint alleged that the slab of concrete which was alleged to be defective was not a part of the premises leased to the plaintiff but was retained in the control of the landlord for the common use of all the tenants of the house. The court charged the jury that upon the question of the defendant's duty to keep this slab in a safe condition the test was not so much whether it furnished a common approach to both tenements as it was whether or not the defendant retained control of it, and while expressly stating that the jury were not to be governed by its opinion, told them that it thought they would be justified in finding from the evidence that the slab was within the control of the *72
defendant. The generally accepted rule that, while a landlord is not bound to keep in repair the premises demised in a lease, that duty does rest upon him as to passageways, halls or other portions of the premises reserved for the common use of several tenants, is based upon the fact that such portion of the premises is not a part of the leasehold estate of any tenant but is retained by the landlord under his own control. The ultimate question was, therefore, as the court correctly told the jury, whether or not this cement slab was a portion of the premises covered by the plaintiff's lease. That there were no other tenants, aside from the landlord and the plaintiff, and therefore no common use of this approach by a number of tenants, does not require the conclusion that it was not the landlord's duty to keep it in repair. Gibson v. Hoppman,
The plaintiff testified that she had been a tenant in this house for more than a year at the time of the accident, and that the slab had been cracked ever since she moved into the house. The defendant's motion to set aside the verdict was based in part upon his claim that upon these facts the plaintiff had assumed the risk of a defect in the premises which was in existence when she rented them, and he also predicates error upon the failure of the court to charge the jury upon the doctrine of assumption of risk. The defendant did not request the court to charge the jury upon the doctrine of assumption of risk, and upon the undisputed facts of *73
the case the plaintiff did not assume the risk of injury arising from a defect in this cement slab. Ordinarily the landlord is not liable for an open, visible and dangerous structural condition in the leased premises, in existence when the tenant took possession. As to such an existing condition the tenant assumes the risk since he takes the premises as he finds them except for secret structural defects unknown to him but known to the landlord. Valin v. Jewell,
The defendant assigns as error the failure of the trial court to charge the jury in compliance with several of his requests as to the duty resting upon the plaintiff to exercise due care, and further claims that upon the facts the plaintiff was guilty of contributory negligence as a matter of law, and that for that reason the verdict *75
in her favor should have been set aside. It was the contention of the defendant that, because of the plaintiff's use of this slab during her tenancy and her knowledge that it was cracked, she was negligent as a matter of law in stepping upon it at all when she could have avoided doing so by using the front entrance to the house or by stepping off the rear verandah on either side of the slab, and he requested the court to charge the jury that if they found the plaintiff had no reasonable excuse for her failure to thus avoid stepping on the slab their verdict should be for the defendant. The court charged the jury that the plaintiff was not bound to go to the front door or go down off the side on the grass if a reasonably prudent person would not have done so. This was correct. Even if she knew that the slab was defective and that there was another method of exit from the house that was safer, she was not negligent if as a reasonably prudent person she had a right to believe and did believe that she could go where she did in safety using due care. Gibson v.Hoppman,
There is no error.
In this opinion the other judges concurred.
