31 S.W.2d 716 | Ky. Ct. App. | 1930
Affirming.
A demurer having been sustained to the petition as amended of the plaintiff (now appellant), and she having declined to plead further, her petition was dismissed and she appeals.
The petition as amended avers, in substance, that the appellee, L.A. Bowling, was the owner of a building abutting on a public street of the town of Harlan, Ky. It is not made clear how many stories there were to this building, but it does appear that it had at least two stories and a basement. The first floor was a storeroom and it and the basement were rented by Bowling to his co-defendant, the Modern Motors Company, a corporation. The second floor of the building was divided into various apartments which were rented by Bowling to different tenants. Access to the apartments on the second floor was obtained by a flight of stairs leading from a door at their foot that opened onto the street on which the building abutted. Right next to this door in the front of the building was another door that opened from the street onto a flight of stairs leading down into the basement of the building. These stairs leading to the basement and the door at their top were all part of the *484 premises leased by Bowling to the Modern Motors Company. The plaintiff claims that one evening, purposing to visit one of the tenants of the apartments on the second floor, she entered the building through an open door which she, in good faith, believed to be the one opening on the steps leading to the second floor. In truth, however, it was the door opening on the steps leading to the basement. She claims that there was no light or any warning about this door to apprise or warn her of the fact that this was the door opening onto the steps leading to the basement. The petition as amended is silent about whether or not there was any light on the steps leading to the second floor, or whether that door was open or shut, or as to just what was the condition of that entrance. She makes no claim that Bowling had anything to do with leaving the door through which she entered open, unlit, or unguarded on the occasion in question, and she makes no claim that she then had any business with the Modern Motors Company or any right to be upon their premises. The petition as amended further discloses that plaintiff had by an act of conscious volition to leave the street and pass through the door in question before she came to the steps leading to the basement. Plaintiff alleges that when she passed through the door she fell down the steps to the basement and very severely hurt herself.
So far as the demurrer of the appellee Bowling is concerned, it appears that he had leased to the Modern Motors Company the entire premises of the first floor and basement and the door and steps down which the appellant fell, and that the motor company had entire control of the premises so leased to it. Bowling had no control over the premises so let and he did not have anything to do with leaving the door leading to the basement open or with leaving that stairway unlighted. It is not contended that anything he did or failed to do with reference to the stairway leading up to the apartments on the second floor, and which perhaps were still under his control, had anything to do with this accident. It is the general rule that a landlord is not liable for the negligence of his tenants in the use of the leased premises. It was so held in J. E. M. Milling Co. v. Gaines,
So far as the demurrer of the Modern Motors Company is concerned, as the plaintiff was not on its premises by any invitation or license, she was a trespasser, and, being such, she took the premises as she found them. This is not a case where an excavation is so close to the public highway that a traveler upon it using proper care to keep upon the proper path may inadvertently step a bit to the side and fall into the pit. In such a state of case, the occupant of the land upon which the excavation is located must exercise ordinary care to keep it properly guarded. Here, however, the plaintiff by conscious act voluntarily leaves the street, enters upon premises where she had no business and where she has no right to be, and, after entering through an open door, falls down an unlighted stairway. It is very like the case of Johnson v. Paducah Laundry Co.,
The judgment of the trial court is therefore affirmed. *487