131 A. 668 | Pa. | 1925
Hause, the defendant, leased a building, and occupied it for a store and warehouse in the conduct of a feed business. The second floor was used as one room for the keeping of hay and like products. Near the center was a hatchway covered with two doors placed crosswise, measuring eight and one-half by four feet, through which merchandise was lowered, when required, to the driveway beneath. The loft was lighted by windows on three sides, each thirty-five inches by seven and one-half feet. On the north there were four, on the west seven, and on the south three, opening, in the first two instances, on public highways, and, in the last, upon an areaway, three or four feet wide, through which light and air were admitted. There were no shutters attached, though screens, with a mesh of one and a half inches, were fastened in each case on the outside. Testimony was offered by the plaintiff in the present action for damages, resulting from a fall through the opening, that all of the windows were dirty, thus diminishing his ability to discern properly the condition of the floor. The accident occurred between nine and ten o'clock on the morning of August 1st.
By the terms of the rental contract, the right of defendant to possession of the premises expired on Sunday, July 31st. On the afternoon of the day preceding, all of lessee's property was removed to a new location, with the exception of a few bags of rubbish, and a mirror, which for a long time previous had been stored in the rear of the loft. Some evidence was offered to show that two or more horses and wagons also remained upon the premises when the employees came on Monday morning to remove the articles left there, and for the purpose of cleaning. Leave to do so had been given on behalf of the landlord. The possession beyond the period of the lease cannot be said to have been more than permissive, and no liability for injuries from defects in the building after July 31st existed (Reilly v. Shannon, *169
Silver, the plaintiff, was a junk dealer, and had lived within a few doors of the place where he was hurt for many years. He was acquainted generally with the building, though had not previously been on the second floor. Two weeks before, he had purchased a small amount of rubber from Hause, and it was claimed the latter then stated that a mirror, stored on the second floor, could be bought subsequently, when plaintiff would be notified, and given an opportunity to secure it, if he so desired. On Monday, August 1st, one Richards, a driver of defendant, called on Silver, and offered to make the sale. It was insisted this was done on behalf of defendant, though testimony was offered to show that the glass had been given as a present to the employee, who was to keep for himself such sum as he could secure. Silver, Richards and his assistant, went to the loft, and crossed it, evidently passing over or by the hatchway, going to the rear where the mirror stood. Plaintiff said the room was dark, but the light was sufficient to *170 permit an examination of the glass, for which he offered to pay two dollars. The sum mentioned was satisfactory, and the three men started to carry the purchase toward the front of the loft. Silver was walking backwards, and fell through the open hatchway, which, according to his testimony, he had not observed. The two others present claimed the glass was moved to the opening, and there rested upon the floor, preparatory to lowering it to the driveway beneath, and that the plaintiff stepped from the rear directly into the hole, and was injured.
There is no doubt that a tenant in possession and control of the premises is liable for loss arising from his failure to exercise reasonable care in keeping the property in safe condition (Fitzgerald v. Sherwood,
It is insisted, however, that the claim was not properly submitted, because of the refusal to charge, as requested in the sixth and seventh points, that Silver was not a trespasser, but an invitee of Hause. In view of the finding that the latter was not in control at the time of the accident, the error alleged need not be discussed. But, it may be remarked, the court could not have affirmed either point, as the legal definition asked for was dependent on disputed questions of fact. If plaintiff entered the building for his private purpose to effect a purchase from Richards, who claimed to have become the owner of the article to be sold (Muench v. Heinemann, *171
There is another reason why no award of damages can be sustained in the present case. It was, of course, incumbent upon the plaintiff to affirmatively prove negligence (Huey v. Gahlenbeck,
The judgment is affirmed.