95 Minn. 279 | Minn. | 1905
The plaintiff, the mother of a female infant child (the father having died) brings this action to recover for injuries sustained by the infant. At the close of the plaintiff’s testimony defendant moved for a dismissal, which was granted. A new trial was asked, which was denied. From this order plaintiff appeals.
The evidence reasonably tends to support the following facts: The infant was six and a half years of age at the time of the accident. Her mother rented of defendant an apartment, which was one of numerous suites of flats of a large building fronting on Washington avenue, in Minneapolis. There were two stores on the ground floor. Above the stores were sixteen flats. Plaintiff had one apartment of six rooms on the third floor, fronting on Washington avenue. This was a front suite, which had no porch directly connected.. In the rear were similar apartments, to which were attached open porches above the first floor, each porch being one hundred fifty feet in length, five feet in width, two in number, one above the other. There were halls adjacent to the different apartments, and easily accessible to the tenants of the building who occupied the same for household purposes. The usual relation between the different apartments existed, and tenants could go from one to the other without passing into the street. While the plaintiff’s rooms were not attached to the rear porch, she was allowed privileges thereon for placing wood and other conveniences usual in household purposes. There was in connection with the suites a janitor, who had taken care of the building and apartments for three years previous to the accident. On the second floor below, in the most distant flat from plaintiff’s apartments, her child was playing- with a neighboring child on the back porch. Around this porch was a balustrade or railing some three feet in height, which would have afforded a reasonable protection to restrain children thereon from falling had it not become defective some two weeks previous, when the janitor repaired it. The night before the accident it again broke, and the tenant who occupied the rooms, without notice to the janitor, nailed it up. The plaintiff’s child, while playing with her associate, ran against the balustrade. It broke by reason of its defective condition, and she was precipitated to the ground, receiving injuries for which her mother, the plaintiff, seeks to recover in this action. It may be further stated that the testimony
The theory of the learned trial court in dismissing the action was that plaintiff’s child was trespassing upon the porch, or at best a mere licensee; and, conceding that she might have a right to be on the porch where her mother had stored her own articles, she did not have that same privilege on one of the porches of another tenant, but was required to take such premises at her own risk, or as she found them. It is a well-settled principle of law which must be adhered to that trespassers are in duty bound to take the premises upon which they go as they are, and that the owner of the same is not in duty bound to go beyond the obligations which arise from actual or implied duties to provide a reasonably safe place for intruders or licensees.
We have been cited to several cases which are supposed to be relevant to the questions here involved, but the peculiar situation that existed, in our judgment, must control and affect the liability based upon the particular facts before us, and no cited case is directly applicable.
These apartments were occupied by tenants for domestic purposes. The defendant landlord, who rented and received compensation for their use, was in duty bound to contemplate all ordinary and reasonable purposes for which they might be used; and if, within such limitations, it was intended to restrict the occupancy of the porches by the tenants and their children, it was just and reasonable that such restrictions should be definitely made and brought home to such persons. A number of families living in apartments like these would be reasonably expected to have children of tender years, and it would be difficult to prevent them from using the halls, though it might be done, as in this case, by regulation. It was also but reasonable to suppose that they would go upon the porches, and the fact that they had done so for a number of years without objection from the owner while the building was under the control of defendant’s janitor in connection with the
Under the evidence in this case, considering the use that was made of the building by the tenants, the natural relations that arise from such use, the habits of the children, their tendency, which cannot be excluded from our inquiry, it seems very clear that it would be a question of fact for the jury to determine whether the defendant exercised proper care in maintaining the railing in a reasonably safe condition.
We may say with reference to testimony that was offered to show that there were no playgrounds in connection with the building that, while it was not the duty of the defendant to furnish a playground for the children, the natural tendency and inclination of the children, their habits, in connection with the permission it gave to use the porches, would require its surroundings and conditions to be shown, and that for this purpose it was error to exclude this evidence.
The order appealed from is reversed, and new trial granted.
