Frischberg v. Hurter

Morton, J. At the time of the accident the premises were in the occupation of a tenant to whom the defendant had let them. The general rule is that, under such circumstances, the landlord is not liable to strangers for injuries caused by a defect or want of repair in the premises, unless he has agreed to make repairs, or 25 the defect or want of repair existed at the time of letting, and was of such a character as to constitute a nuisance, or make the premises permanently dangerous. See Leonard v. Storer, 115 Mass. 86; Mellen v. Morrill, 126 Mass. 545; Dalay v. Savage, 145 Mass. 38; Clifford v. Atlantic Cotton Mills, 146 Mass. 47; Caldwell v. Slade, 156 Mass. 84; Gwinnell v. Eamer, L. R. 10 C. P. 658; Pretty v. Bickmore, L. R. 8 C. P. 401; Nelson v. Liverpool Brewery Co. 2 C. P. D. 311; Gandy v. Jubber, 5 B. & S. 78; Todd v. Flight, 9 C. B. (N. S.) 377; Taylor, Land. & Ten. (7th ed.) § 175. We think that there was no evidence fairly tending to show that the defendant had agreed to keep the premises in repair. The most that can be said of the evidence, as it seems to us, is that the defendant agreed to make certain specific repairs which she made as agreed, but did not agree generally to keep the premises in repair. The case in our own reports which comes nearest to this is Dalay v. Savage, ubi supra. In that case, however, there was a rope to the cover but no chain, and the coal-hole was so worn that the cover would slip when stepped on, whether tied or untied. In this case the cover itself was in good condition, and there was an S attached to it through which a piece of iron could be put so as to fasten it down securely, and this was done after the accident by a boarder of the tenant by means of a piece of gas-pipe which was found in the cellar, and which, for aught that appears, may have been there for that purpose. Landlords are not obliged to see that the covers on coal-holes in premises which are in the occupation of a tenant are kept securely fastened, and we think that the cause of the accident in this case was the neglect of the tenant to fasten the cover, rather than the worn condition of the hole. We assume that the plaintiff was in the exercise of due care. The evidence tends to show, if that is material, that the coal-hole was upon the defendant’s premises. Exceptions overruled.