86 Pa. Super. 173 | Pa. Super. Ct. | 1925
Argued May 4, 1925.
In September, 1918, Ralph R. Redman, Sr., one of the plaintiffs, rented from Albert C. Weeter, one of the defendants, an apartment on the third floor of a three-story apartment house, owned by the latter in *175
Swissvale, and possession was taken by the plaintiffs soon thereafter. At the rear of the building there were porches to accommodate tenants on the first, second and third floors and a stairway led from the third floor porch to the lot below. On the 20th of May, 1920, while the plaintiffs were still in the occupancy of the premises, their son, aged between thirteen and fourteen months, made his way from the porch of the upper floor down three steps of the stairway and in some way, not clearly shown, fell from the stairway through an opening about eighteen inches high and two feet and three inches in length under the handrail constructed along the side of the stairway, as a result of which accident the child died the next day. The plaintiffs charge that the loss was caused by the negligence of the landlord in not so closing or guarding the space referred to that the child could not have exposed himself to the danger. Evidence was introduced to show that the stairway had been changed in March, 1919, the work being in charge of a builder and contractor who relocated or rearranged it to meet the requirements of a garage construction on the ground at the back of the building. There was no complaint in regard to the manner of this construction except that a larger space was left under the handrail where the child fell than should have been there. The only evidence of a competent witness in regard to the form of the structure was that it was built in a usual manner as adopted by builders. The evidence indicates that at the time this work was done the child was not born. The lease is not set forth in the pleadings, the explanation of its absence being that the plaintiffs had been unable to obtain a copy of it. We are not informed therefore whether the lease was from month to month, for a year, or for a longer term. The case was tried on behalf of the plaintiffs and submitted to the jury on the theory that it was the duty of the landlord to make the stairway secure against the opportunity of an unattended *176
child to injure himself by a fall therefrom. The contention of the appellants is that there was no evidence of actionable negligence and that the plaintiffs were guilty of contributory negligence in their failure to care for their child, there being evidence that there was a door and a screen door opening onto the porch and a gate at the head of the stairway leading down from the porch. That the stairway was adequate for ordinary use seems not to be disputed. There is affirmative evidence to that effect and none to the contrary. In strength and form it was sufficient for the purposes for which such structures are ordinarily used. The plaintiffs were familiar with its condition and, unless their term was for a longer period than a year, renewed the lease with full knowledge of the condition of the premises. The allegation is not that it was a defect known to the landlord and not known to the tenant which was the cause of the injury. The plan of the structure was obvious to every person who had occasion to use the stairway. When the plaintiffs rented the premises they did so without any implied warranty that they were fit for the purpose for which they were rented and no expressed warranty is asserted. It was the privilege of the landlord to have the stairway narrow or wide, with deep or shallow tread, to have it ascend directly or to make the approach to the porch at an angle or on a curve; nor was he impliedly bound to make repairs. As was said in Moore v. Weber,
The judgment is reversed. *178
