132 N.Y. 499 | NY | 1892
We are of the opinion that the evidence does not permit a recovery.
No contractural relation exists between the plaintiff and defendant. The covenant of the landlord to repair does not inure to the benefit of a stranger sustaining injury because of its breach. (Odell v. Solomon,
But when the occasion of the injury constitutes a nuisance as to the party complaining, then a landlord may be chargeable in damages on the ground that he maintains a nuisance, where the contract of letting contains a covenant authorizing him to re-enter for the purpose of making repairs. (Ahern v. Steele,
We are thus brought to the question whether the decayed steps in the rear of defendant's premises leading from the ground to a stoop constituted a nuisance as to the plaintiff, who occupied an adjoining house. If so, the defendant, by reason of his covenant to repair, may be responsible for the injury occasioned to the plaintiff while walking down them.
This inqury admits of but one answer and does not seem to be worthy of the citation of authority, but it may not be out of place to refer to the cases cited by the appellant.
It may be observed in passing that the owner may ordinarily exercise such dominion over and make such use of his real estate as he chooses, provided the rights of others are not thereby violated.
No right of the plaintiff was violated. The enjoyment of the premises occupied by her was not interfered with. Had she remained on them the injury would not have occurred. But she chose to go on private property and up or down back steps, over which she had no authority and as to which she had acquired no such interest by contract or otherwise, as would have entitled her to demand as a right that the so-called nuisance be abated. As to her it was not a nuisance, because it did not invade either her property or personal rights. (Murphy v. City of Brooklyn,
Appellant cites Timlin v. Standard Oil Company (
In Beck v. Carter (
It appeared that the excavation had been made in a place long used by the public, and the character of the user was thus described by the court: "It was not the case of a bare permission by the owner to cross his land adjoining a public street. The land had, by use long continued, been made, for the time being, a public place and part of the highway."
While the court held that the situation presented by the evidence supported the judgment, it did not fail to emphasize the general rule that the owner of property has the right to put his property to such use as he chooses, "and, in the absence of special circumstances, if a person traveling on a highway deviates therefrom and falls into a pit or excavation on the adjacent land, the owner is not responsible for the resulting injury."
There are cases where the use to which an owner of property puts it is of such a public character that he is bound to observe reasonable care in keeping it in such a condition as to save, harmless, those who are invited to come on to it for the benefit and profit of the owner. Cases of this kind are considered by this court in Clancy v. Byrne (
Swords v. Edgar (
But a further consideration of cases is neither needful nor useful. No case has been found, nor do I think can be, which supports the contention that, as to this plaintiff, the decayed back stairs of a private residence, under the circumstances proven, constituted a nuisance.
As there is no injury, in a legal sense, which can give a right of action, unless it is occasioned by a violation of some duty owing to the injured, there remains for consideration but one other ground on which it is claimed that defendant's liability can be predicated.
It is urged that a recovery can be supported because the defendant negligently permitted the stairs to remain in an unsafe condition. The question is, therefore, presented: Did the defendant's duty require the exercise of any care to protect the plaintiff while on the premises?
The fact that a landlord leases premises, with a condition that he may re-enter for the purpose of making repairs, does not enlarge his responsibility as to third persons, or burden him with the duty as to them of observing any greater degree of care than would be required were he in possession.
As it may tend to avoid confusion, therefore, we will consider the question of negligence from the standpoint of actual occupation by the owner, this defendant.
It will be well to get in mind, first, the situation of the premises and the circumstances surrounding and leading up to *505 the injury. For such purpose, we will take the testimony of the plaintiff.
At the time of the injury she occupied a house next to, and between four and five feet from the house of defendant, where the injury occurred. Between the houses was a fence, and in the rear of the houses an opening had been made by knocking some boards off. Her little girls were accustomed to go into the yard and play, and on the 20th of June, 1886, about half-past five in the afternoon, plaintiff went over to bring the children home. They were then in the house, and as she was walking down the back steps holding one of them by the hand, the fourth or fifth step from the bottom broke and her foot went through, causing her to fall to the ground, resulting in injury.
From these facts it appears that the plaintiff was not brought within the risk of these unsafe steps by the occupier's invitation on a matter of common interest, or in the exercise of a right. She was, therefore, a mere licensee.
"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 7 II N. 745.) The general rule is that a licensee must take the property as he finds it. Mr. Pollock in his work on torts states the rule as follows: "Persons who by the mere gratuitous permission of owners or occupiers take a short cut across a waste piece of land or pass over private bridges, or have the run of a building, cannot expect to find the land free from holes or ditches or the bridges to be in safe repair, or the passages and stairs to be commodious and free from dangerous places." The exceptions to which he alludes need not be mentioned for they are not in point here.
Mr. Pollock cites in support of the rule quoted English decisions mainly, but the same rule has been generally, if not universally, applied in the various jurisdictions in this country.
In Severy v. Nickerson (
In Larmore v. Crown Point Iron Company (
At the suggestion of the foreman of that pit he applied at another pit and was engaged to commence work there on the following Monday, and while near a machine used in raising buckets of ore from the mines to the surface of the ground, a lever was thrown out of its socket and flying around struck and broke his legs. It was held that he could not recover, the court saying "he was on the premises at most by the mere implied sufference or license of the defendant, and not on its invitation, express or implied, nor was he there in any proper sense on the business of the company. * * * The fact that the plaintiff had on going to pit No. 10 engaged to commence work on the following Monday, did not change his relation to the company or make him other than a mere licensee on the premises."
That case is decisive of the one under consideration, so far as the question of negligence is concerned, for it is an authority for the assertion that plaintiff's own testimony establishes conclusively that while she was on defendant's premises she was at most a mere licensee.
The judgment should be affirmed.
All concur, except HAIGHT, J., not voting.
Judgment affirmed. *507