Sessa v. Rozzi

Opinion by Williams, J., This was an action by a husband and wife against their landlord. October 5, 1914, plaintiffs leased two rooms on the third floor of defendant’s house, and had lived in the premises five days when an accident occurred. A door led from their back room to a platform, used in common with other occupants for drying clothes. This was constructed of boards laid upon joists resting upon the gravel roof of the rear second story of the building. On the platform was a plank, in front of plaintiffs’ door, used as a step, with a space about three inches wide between it and the wall of the house. The wife testified that as she was going out after her child her foot went into the space between this step and the wall and she tripped and fell into a skylight some eighteen inches distant. The jury rendered a verdict for each of the plaintiffs. Defendant’s motion for judgment having been refused, he appealed, and, admitting as he must upon this state of the record that there was a defect in the step leading to the platform, he contends that a landlord is not liable unless he is guilty of misrepresentation, active concealment, or the defect is of such a nature that it could not be discovered by inspection. In Robinson v. Heverin, 50 Pa. Superior Ct. 546, the defect complained of was a loose tread in the middle step leading from the sidewalk into the house. The step was outside the door of the demised premises, and was [596] used by the tenant, his family and friends, for ingress and egress. We held under the facts that the landlord was not liable. It nowhere appears in the record that defendant covenanted to keep the step in repair, nor did he warrant that it was in a safe condition when the premises Avere leased. In the absence of fraud or concealment a landlord is not responsible for injuries resulting from defects existing at the time of the demise: 16 Ruling Case LaAV, p. 1059; Borggard v. Gale, 205 Ill. 511. The rule of caveat emptor applies in full force and the tenant and his family are bound to use their eyes to discover such defects as are open to observation or inspection: 24 Cyc. 1114. It is true that the defect complained of Avas in the original construction, but this only affects the liability of the landlord to a stranger: Kane v. Lauer, 52 Pa. Superior Ct. 467. The plaintiffs had notice of the defect, or copld have had, and while it was such as might have made defendant liable to a stranger, as to them no liability could arise under the facts. The defect was in a, part of the means of egress from, and ingress to, plaintiffs’ rooms, and was distinctively a part of the premises, demised. It was the proximate cause of the accident and the responsibility must rest upon them. The Act of May 8, 1895, P. L. 54, Sec. 2, provides “if both (husband and wife) join in one suit, separate verdicts shall be rendered, one verdict determining the right of the wife and the other verdict determining the right of the husband, and separate judgments shall be entered thereon with the right to separate executions.” The record discloses a single judgment erroneously entered upon two verdicts. We are, therefore, unable to determine whether the judgment appealed from Avas entered upon the verdict for the husband or that in favor of the wife. The judgment is reversed and the record remitted to the court below with direction to amend its record and enter separate judgments n, o. v. for defendant.