125 Iowa 546 | Iowa | 1904
Appellant insists that the platform and stairway were reserved by the landlord for use of the tenants in common, and that for this reason he was bound to keep them in repair. The evidence, however, fails to show such a state of'facts. The platform back of plaintiff’s rijoms was constructed in pursuance of the oral lease for Flaherty’s use, and there is not a particle of evidence in the record indicating that it was ever reserved, or that any one save Flaherty had any right to its occupancy. The stairway leading to the back yard was attached to this part of the platform, so in going up and down stairs them was no occasion for passing over that portion in the rear of the middle apartment. Whether the tenant thereof had the right also to use the stairway is immaterial, for that did not fall. Nor is there any evidence indicating that under the Oral lease Flaherty was to occupy any of the porch other than that back of his rooms, or that the owner had reserved that back of the middle apartment
If, then, the plaintiff occupied the platform back of the middle apartment with her tubs or other articles, she did so as a mere licensee, and not by virtue of the lease. But a licensee enters at his own risk, and cannot recover for injuries caused by existing defects in the premises. Stevens v. Nichols, 155 Mass. 472 (20 N. E. Rep. 1150, 15 L. R. A. 459); Sterger v. Van Sicklen, 132 N. Y. 499 (30 N. E. Rep. 987, 16 L. R. A. 640, 28 Am. St. Rep. 594); McGill v. Compton, 66 Ill. 327; 18 Am. & Eng. Enc. of Law (2d Ed.) 1136. “Permission involves leave and license, but it gives no right. If I avail myself of permission to cross a man’s land, I do so by virtue of a license, not of a right. It. is an abuse of language to call it a right. It is' an excuse or license, so that a party cannot be treated as a trespasser.” Martin, B., in Bolch v. Smith, 7 Hurl. & N. 745. In Severy v. Nickerson, 120 Mass. 306 (21 Am. Rep. 514), the court observed, in considering this subject, that the “ distinction which exists between the obligation which is due by owners of premises to a mere licensee who enters thereon without any enticement or inducement, and to one who enters upon lawful business by invitation, either express or implied, is well settled. The former enters at his own risk. The latter has a right to believe that by taking reasonable care of himself all reasonable care has been used by the owner, in order that no injury may occur.”
The ruling of the court was correct, and the judgment is affirmed.