63 Ind. App. 427 | Ind. Ct. App. | 1916
This was a suit by appellee against appellants and also one Stark for personal injuries alleged to have been received by her in falling into a cellarway leading from a sidewalk to a basement of .a building in the city of Indianapolis, on the night of September 28, 1911. The cause was tried upon a second amended first paragraph and a second paragraph of complaint.
A demurrer to the second paragraph of complaint, for want of facts, was overruled, and this action of the court and the overruling of appellants’ motion for a new trial are assigned as errors in this court.
The second amended first paragraph of complaint charges, in substance, that appellants were the owners of said building and rented the first floor and basement of the same to said Stark; that under said building was a basement which was reached by a stairway leading from an opening in the sidewalk along. the side of the building, which covered almost the entire width of said walk and was used by said Stark to enter said basement, all of which was known to said owners; that said owners had provided and maintained iron grating doors over said opening which had to be lifted and laid back to a point beyond the perpendicular to gain access to the basement; that said owners negligently failed to provide any guard or light around said opening and that a guard could have been erected
The second paragraph of complaint is similar to the second amended first paragraph and, in addition, alleges that said owners knowingly and negligently permitted said iron grating doors to become out of repair, in this, that the stops or blocks which formerly had been on the side of the building against which said doors rested when open, were allowed to become insufficient for said purpose; that when such blocks were not upon the side of said building, the doors, when open, instead of standing perpendicular, and thus forming a guard about the opening, would lie almost flat upon the sidewalk, in which position they formed no guard or protection; that when said doors were raised the opening constituted a highly dangerous place, and was a nuisance, as said walk was much used by the public, all of which was known to said owners.
As will be seen, the second amended first paragraph of complaint seeks to hold appellants liable as owners of the building for their failure to provide a guard or light around said opening, when the doors were raised or open; and said second paragraph seeks to hold appellants liable, as owners of the building, for negligence, in knowingly permitting the blocks, formerly on the side of the building, which held the doors nearly upright when open, to become out of repair and ineffectual for the purpose, and that, when the doors were open, they, and the opening, constituted a nuisance.
It is not contended by appellee, in either paragraph of the complaint, that the doors over the cellarway were not properly constructed or were not in good condition or that the walk over them was not safe for use by the public,
But the second paragraph of the complaint not only charges appellants with negligence in failing to provide the blocks on the side of the building, but charges “that when said guard or cover over said opening was raised, said opening and the cover thereof constituted a highly dangerous place, and the same was a nuisance.” It is not charged in said second paragraph of complaint that appellants, in the construction and. maintenance of said stairway and covering, violated any statute of this state or any ordinance of said city, so if they are to be held guilty of maintaining a nuisance they must be so held under the common law. "We have examined all the authorities cited by appellee, which hold the landlord liable in such cases, and find them to be cases where the doors or covering to the entrance were either not properly constructed or had been allowed to become defective and were in such condition as to constitute a nuisance per se, at the time of the letting, except eases where the landlord had agreed to keep the premises in repair. In the later cases we find none holding that
In the case of Joyce v. Martin (1887), 15 R. I. 558, 10 Atl. 620, it is held: “Where property is demised and at the time of the demise is not a nuisance, and becomes so only by the act of the tenant while in his possession, and injury happens during such possession, the owner is not liable”. The above case is followed in the case of Adams v. Fletcher (1890), 17 R. I. 137, 20 Atl. 263, 33 Am. St. 859 and Henson v. Beckwith (1897), 20 R. I. 165, 37 Atl. 702, 38 L. R. A. 716, 78 Am. St. 847.
In Schroeck v. Reiss (1900), 61 N. Y. Supp. 1054, 46 App. Div. 502, it is held that a landlord who lets a store and basement to a tenant, who had exclusive possession and
In Opper v. Hellinger (1906), 101 N. Y. Supp. 616, 116 App. Div. 261, it is held that where a cellarway under a sidewalk was constructed by permission of the municipal authorities, and was provided with doors to completely cover it, it was not a nuisance, so far as the owner was concerned, and he was not liable for injuries sustained by a pedestrian who fell into it while it was uncovered, where the premises were under the exclusive control of the tenant.
In Duffin v. Dawson (1905), 211 Pa. St. 593, 61 Atl. 76, it is held that where a person is injured by the tilting of a cellar door, and it appeared that the accident was caused by reason of the door to the cellarway not being propeiiy closed, and not because of any defect in the construction of the door, the remedy is against the tenant in possession and not against the owner.
In Frischberg v. Hurter (1899), 173 Mass. 22, 52 N. E. 1086, it is held that the owner of premises occupied by a tenant, and which the owner has not agreed generally to keep in repair, is not liable for injuries caused to a third person by falling into a coal-hole on the premises through the neglect of the tenant to fasten the cover, which of itself is in good condition.
In the case of Taylor v. Loring (1909), 201 Mass. 283, 87 N. E. 469, 470 the court said, on page 285: “The defendants had nothing to do with the care and management of the premises at the time of the accident. The only ground for a contention that they were liable for the accident is that the mode of construction of the vestibule made it a nuisance by reason of the use for which it was intended and to which it was put by the tenants in accordance with the plan and purpose of the defendants when they executed the lease. * * * If at any time there were conditions which made it dangerous, the defendants had a right to
In Reynolds v. King (1911), 74 Misc. Rep. 439, 132 N. Y. Supp. 273, it is held that where a cellarway under the sidewalk was covered with iron doors, which were in perfect condition, and safe so long as closed, and the doors were in control of the tenant, the owner was not liable for injuries received by a pedestrian because of the falling of the doors, which the tenant opened and left insecurely fastened.
In Fisher v. Thirkell (1870), 21 Mich. 1, 4 Am. Rep. 422, it is held that where there is no provision in a lease in regard to injuries, it is the duty of the person having control of the premises to keep a scuttle in a sidewalk in repair; and the owner of the premises will not be held liable for injuries caused by neglect to keep the scuttle in repair, if it was in good condition when possession was given under the lease.
Appellee contends in her brief that her complaint, if not good under the common law, is good under Acts 1911, page 597, known as the “Dangerous Occupations Act.” "Whether said act applies to coal-holes and cellarways in sidewalks we do not regard as necessary to decide. It is sufficient to say that, if it were intended to apply to such oases, the complaint and evidence shows that appellants fully complied therewith by maintaining a good covering for the cellarway.
It follows from what we have said that the second paragraph of complaint does not state facts sufficient to constitute a cause of action against the appellants, and that the verdict is contrary to law and is not sustained by sufficient evidence.
The judgment of the lower court is reversed, with instructions to grant a new trial, sustain appellants’ demurrer *
Note.—Reported in 113 N. E. 764. Liability of landlord to a third person for condition of premises in possession of tenant, 26 L. R. A. 197, 198 ; 92 Am. St. 502 ; 24 Cyc 1128.