48 Ga. App. 130 | Ga. Ct. App. | 1933
Mrs. Belle Sternberg brought suit against Max Krapf for damages on account of personal injuries, alleging in substance that her husband, with whom petitioner was living, was a tenant of defendant; that one of the steps leading from the rear of the rented house to the back yard caved in with petitioner, resulting in certain described injuries; that defendant had received repeated notice that the stairway needed repairing, that he had made an examination thereof, and knew or should have known of the rotten condition of one of the steps thereof; that “the step through which she fell did not appear dangerous for her to step upon,” and that she was in the exercise of ordinary care in going upon said step; that the repairs that were needed were general repairs as the
The burden of the contention of the defendant is that the plaintiff, knowing that the stairway needed repairing, knew or should have known of the dangerous condition of the rotten step therein, and, therefore, was guilty of a want of ordinary care in using the stairway. This contention, under the circumstances of the case, is without merit. It is a matter of common knowledge that steps may be rotten on the underside and such condition not be apparent when viewed from the upper side which is exposed to view of one using them. The fact that the stairway was shaky would indicate that its foundation or underpinning was in need of repair, but does not necessarily mean that the foundation or underpinning was so obviously or apparently defective as to render the stairway dangerous to use, even had plaintiff been injured because of a defect in that portion of the stairway. The fact that the stairway was shaky certainly did not put plaintiff on notice that a particular step therein was rotten, and there is nothing in the petition to show that she knew that the step was rotten. On the contrary, the petition plainly alleges that "the step through which she fell did not appear to be dangerous for her to step upon,” and that she “h'ad no knowledge that the steps were rotten.” The defendant having upon him the duty of keeping his rented house in a safe condition, and having been notified that the stairway needed repair, and having made an examination thereof, he knew, or should have- known of the rotten step therein. In Alexander v. Owen, 18 Ga. App. 326, it is held: "When rented premises become out of repair, it is the duty of the tenant to notify the landlord of this fact, and also to abstain from using any part of the premises the use of which would be attended with danger. But even after notice to the landlord the tenant has a right to use those parts of the premises which are apparently in good condition, if there is nothing to call his attention to what may be a hidden defect. The failure of the landlord to repair in such a case would give the tenant a right of action for any damages sustained by him, and his use of that part of the premises
The petition as amended set out a cause of action, and the court did not err in overruling the general demurrer thereto.
The assignment of error upon the judgment overruling the special grounds of the demurrer is not argued or insisted upon in the brief of counsel for the plaintiff in error and is treated as abandoned.
Judgment affirmed.