Borman v. Sandgren

Garnett, J. Appellee brought suit in this case for personal injuries sustained by her, on premises belonging to appellant. The property where the injury occurred is situated on Townsend street, in Chicago. On the lot is a two-story house, the front of which stands about seven feet back of the inner line of the sidewalk. The lower story was rented by appellant to a Mrs. Larson, and the upper to Mrs. Tillotson. There were separate entrances for each story from the street, and between the two passage ways to the entrances was an excavation or area, about nine feet deep. Along the north line of the passage way to the upper story entrance, was a guard three feet high, built of a wooden rail and standards. The breaking of that rail on April 16, 1888, while appellee was taking her departure from the premises after a social visit to Mrs. Tillotson, is what caused appellee’s fall into the area, and consequent injury. Appellant denied his liability, for the reason, as he alleged, that his tenant, Mrs. TiTlotson, was in possession of the premises under a verbal lease to her made on October 15, 1887. The lease was for a month, at a specified rent for that time. When the month expired no new agreement was made, but the tenant continued to occupy the premises under circumstances which are admitted to have converted the tenancy into one from month to month, so that the relation could only be severed by proper notice given, either by the landlord or the tenant.. Appellee contending that the lease was, in law, renewed the 15th day of each month after the original lease was made, directed her evidence to the defective condition of the guard rail on the day of the accident. If it was rotten on that day the inference would be natural that it could not have been sound on the day before April 15th, when, as appellee insisted, the lease was renewed. Appellant, however, took the ground that there was but one lease, and that it was never renewed, but simply was not terminated. If appellant was right, in that position, the evidence of the appellee should have been aimed at the condition of the rail on or before October 15, 1887, as the landlord is not responsible for such injuries caused by neglect to repair, when the defective condition of the premises arises during the tenancy. Tomle v. Hampton, 129 Ill. 379; Baird v. Shipman, 33 Ill. App. 503. The trial judge solved the disputed question in appellee’s favor■ by instructing the jury that “when premises are let without express covenants and for an indefinite time, the rent being paid monthly, then, in contemplation of law, a new letting commences with each monthly term.” Appellant assigns error upon that instruction, but the authorities seem tó support the ruling. Gandy v. Jubber, 5 Best & Smith, 78; Griffith v. Lewis, 17 Mo. App. 613; 2 Shearman & Redfield on Negl., Sec. 708; Wood’s Landlord & Tenant, Sec. 539. At the plaintiffs request the court also instructed the jury that “ when the owner of premises rents them in an unsafe or dangerous condition,, whether this condition may be so from original faulty or defective construction or otherwise, and an injury results by reason of such condition, to a third person, who may be rightfully upon the premises, without the fault of such person, such owner is liable for such injury.” That makes the owner the insurer of the safety of third persons (not themselves guilty of neglect) who may be upon his rented premises, in all cases when they were in an unsafe or dangerous condition at the beginning of the term. If this instruction is right, extraordinary vigilance and care would be no defense to the owner. Any- hidden and undiscovered defect would be a menace to his fortune. Upon what principle this can be so is not even suggested by appellee’s counsel. That so extreme a degree of danger attends the ownership of improved real property has never been held in any decided case, and can not be admitted. Even a common carrier of passengers for hire is only held to the highest degree of human care and foresight (Thompson’s Carriers of Passengers 183), but appellant has been held liable for damages in this action, on the theory that he can not protect himself by human care and foresight. The instruction holds him guilty, even if he could not, by any process, have ascertained the supposed faulty condition of the rail. The rule that ordinarily applies to other persons in the use of their property, is the rule that applies here. The question is one of reasonable care. That is all the law requires of appellant, and appellee was bound to prove his neglect to use that degree of care, and that such neglect was the cause of the injury to her. The landlord could not be charged with negligence unless he knew, or might by reasonable diligence have known, of the dangerous condition of the rail. A satisfactory case on this point is Edwards v. N. Y. & H. R. R. Co., 98 N. Y. 245. An expression in the opinion of Denman, J., in Gwinnell v. Eames, 10 Com. P. (L. R.) 658, referring to the close of the judgment in Todd v. Flight, 99 E. C. L. 377, might lead to the conclusion that actual knowledge is necessary to the liability of the landlord. It will be found, however, in the report of the case, on page 659, that the jury specially found that the owner was not to blame for not knowing the defective condition of the premises, while Todd v. Flight simply holds that actual knowledge is sufficient to charge the owner. We think the true rule is, that he is liable if he knows, or if his ignorance is attributable to want of reasonable diligence. For the error noted the judgment is reversed and the canse remanded. Reversed and remanded.