189 Ky. 228 | Ky. Ct. App. | 1920
Opinion of the Court bt
Affirming.
We will designate the parties to this appeal as they appear in the court below.
Plaintiff and her husband rented from the defendant the lower part of a dwelling' in the city of Covington, consisting of three rooms and a hall, to each of which was a door leading to the outside.
A family by the name of Green occupied the second floor. ■ The only means of ingress and egress to the upstairs apartment was through the hallway on the first floor, and over the stone steps, three in number, leading thereto.
In December, 1917, the steps began to recede from the building and from that time until the accident to plaintiff, it is testified the top step was loose and wobbly. Both parties had knowledge of the condition of this step and defendant had instructed its agent two months before the accident to have it repaired, but this was not Jone.
It is generally conceded that the landlord is under no implied obligation, to repair the demised premises hi the absence of a contract to that effect, nor is he responsible to a tenant for injuries to persons or property caused by defects therein, where there has been no reservation on the part of the landlord of any portion of the rented premises. In such cases the law applies to the contract or lease the doctrine of caveat emptor. Franklin v. Tracy, 117 Ky. 267, 77 S. W. 1113, 63 L. R. A. 649. To same effect is Miles v. Tracy, 28 Rep. 621, 89 S. W. 1128, 4 L. R. A. (N. S.) 1142, wherein it was sought to hold the landlord liable because of alleged defects in the wall of the building rented by appellant; the court holding that the pleadings showed the possession of the entire premises had been parted with. Where a landlord leases separate parts of the same building to different tenants and retains exclusive control of certain portions thereof, such as steps, stairways, halls, etc., which are used in common by all the' tenants, the landlord is under an implied obligation to use reasonable diligence to keep such reserved parts in safe condition for the use of the tenants. As to the portion of the premises which he has leased, the landlord is exempt from liability to repair both as regards the tenants and third persons for the reason that he has surrendered to his tenants exclusive possession and control of the respective leased premises. The parts of a building which are subject to the necessary use which the tenants may make of them in connection with their enjoyment of the possession and use of their separate apartments must be kept in repair by the landlord, not because of any contract on his part, express or implied, .but because of the supervision and control which he still retains over all parts of the premises, not expressly demised to his tenants. In other words his responsibility arises from negligence. King & Metzger v. Cassell, 150 Ky. 537, 150 S. W. 682, 42 L. R. A. (N. S.) 774; Peil v. Reinhart, 127 N. Y. 381, 27 N. E. 1077, 12 L. R. A. 843; Bodden v. Thomas, 192 Ill. App. 348; LaPlante
Satisfied as we are that the steps leading to the hall were necessarily used by the different tenants, the duty devolved upon defendant to exercise reasonable care to keep same in a proper state of repair, and the evidence was sufficient to warrant the conclusion that the condition of the steps was such as to justify an apprehension of danger in their use, therefore, defendant was chargeable with negligence in suffering same to remain in such condition, and is liable to plaintiff for any injuries sustained thereby, unless plaintiff’s negligence contributed to her injury.
It is urged that plaintiff’s equal knowledge with defendant of the condition of the steps bars her right to recover herein. We cannot agree with this contention. These steps constituted practically the only means of access to the two apartments and were used by both tenants, facts necessarily known to the landlord. Because of their inaccessibility and condition the other entrances were seldom used.
Mere continued.use of a common passageway, after knowledge of its dangerous condition, is not of itself conclusive evidence of a lack of due care on the part of the tenant, since such knowledge does not require the tenant to desist from using same in a careful manner, nor render the careful use of same contributory negligence. Looney v. McLean, 129 Mass. 33, 37 Am. Rep. 295.
It is said plaintiff’s accident could have happened in any one of three ways, for only one of which the defendant was liable, and therefore the jury could do no more than guess as to the cause of her fall. We do not so understand the evidence, as plaintiff positively stated that when she put her foot down the step threw her. See Dodson v. Herndon, 147 Ky. 181, 143 S. W. 1011.
Eefusal of the court to permit defendant to introduce in evidence portions of the records in two previous suits instituted by plaintiff against other defendants, for injuries which she claims to have suffered, ‘ is urged as error, but without discussing the competency of this evidence it is sufficient to say plaintiff was examined at length by defendant’s counsel about these several matters and the full effect thereof was obtained by defendant in his thorough cross-examination.
Complaint is also made of the instructions, those given and refused, but we do not deem it necessary to quote
It is further claimed the amount of the verdict was excessive. Two juries heard the case, the first verdict was for $1,045.00, the second for $1,000.00. The injuries considered we do not deem the award excessive.
Judgment affirmed.
