Farley v. Byers
118 N.W. 1023
Minn.
1908
Check Treatment
LEWIS, J.

Appellant was the owner of a two-story frame building, the ground floor of which was used for two stores, and the second floor was made into two flats, with a hallway between them, accessible by a front entrance stairway running between the stores. The hall connected with a back porch, which extended across the rear of the building and was ten or twelve feet wide, with a back stairway. This porch was used in common by the occupants of the flats, one of whom was respondent. Under her lease respondent had the privilege of using the hall, porch, and stairways. While she was engaged in some of her household duties on the back porch, a board or boards in the floor broke under her feet, by reason of which she fell and sustained the injury *262upon which this action is founded. She recovered a verdict, and upon this appeal error is claimed upon the ground that, upon the conceded facts, there was no liability on the part of the landlord.

If the facts bring the case within the rule of Harpel v. Fall, 63 Minn. 520, 65 N. W. 913, or Krueger v. Ferrant, 29 Minn. 385, 13 N. W. 158, 43 Am. 223, then the landlord was not responsible. The case turns upon whether the landlord had retained possession of that part of the porch where respondent was injured for the use of all the tenants. In Widing v. Penn Mut. Life Ins. Co., 95 Minn. 279, 104 N. W. 239, 11 Am. St. 471, it was held that as to persons going innocently upon a porch serving as a common means of approach to a tenement the landlord is required to exercise ordinary care to keep the same in a reasonably safe condition. In that case the person injured was not an inhabitant of one of the tenements. That portion of the premises reserved by the landlord, for the common use of tenants for the purposes of ingress and egress, remains in his possession, and the duty to keep the same in repair has reference to all parties having occasion to use them. In the absence of a covenant to the contrary, possession by the landlord will be presumed of that portion of rented premises reserved for the common use of all the tenants. In the Widing case the railing had become defective, and an attempt had been made to repair it. In the present case no attempt had been made to repair it, and the board had gradually become decayed; but the distinction is immaterial. If in the exercise of ordinary prudence the landlord would have discovered the decaying of the board, then he was required to remedy the condition.

Harpel v. Fall and Krueger v. Ferrant, supra, are clearly distinguishable, in this: In those cases the landlord did not retain possession of any part of the premises, and consequently, in the absence of covenants to repair, the tenants took the premises in the condition in which they found them. Here that part of the premises in question was never wholly surrendered, and hence the tenant did not assume dominion over it.

2. The court, over appellant’s objection, received certain testimony concerning statements or admissions with reference to repairing the porch, made by appellant’s agent. Testimony had been given as to another conversation between the agent and respondent, and the trial *263court probably assumed that the conversation objected to occurred prior to the-accident, but upon discovering the mistake struck out the evidence. That the result was prejudicial does not appear.

Affirmed.