Staples v. Casey

Mr. Justice Robb delivered the opinion of the .Court: The plaintiff contends that there is a difference between an agreement on the part of the landlord to keep the tenant’s premises in repair, and an agreement to put or maintain them in a safe condition for the tenant’s use, and that where an agreement of the latter character has been made, a positive duty is imposed upon the landlord, the negligent breach of which gives rise to an action in tort to the tenant. Such a distinction was made in Thompson v. Clemens, 96 Md. 196, 60 L.R.A. 580, 53 Atl. 919, and in Miles v. Janvrin, 196 Mass. 431, 13 L.R.A. (N.S.) 378, 124 Am. St. Rep. 575, 82 N. E. 708. In the former case, the declaration alleged that the landlord had agreed [480] “to keep and maintain the premises in good, safe, and perfect condition.” The court ruled that under such an agreement a duty rested upon the landlord, the negligent breach of which would give rise to an action on the case founded in tort. The plaintiff in that case disclaimed knowledge of the defective condition of the porch floor that caused her injury, but the court said: “If she [plaintiff] did know its condition, and, notwithstanding such knowledge, used it without any more necessity for doing so than is disclosed by this record, then unquestionably she would have been precluded from recovery, on the ground of contributory negligence.” In the latter case, there was merely an agreement on the part of the landlord to keep the premises in repair, and the negligent failure to fulfil this agreement was made the basis of the action. The court said: “To charge a landlord in tort for personal injuries caused by a negligent omission to make needed repairs, not only must the tenant prove that the landlord agreed to keep the premises in repair, but he must go one step further, and prove that the landlord agreed to maintain the premises in a safe condition for his (the tenant’s) use.” In other words, the landlord must have agreed to assume entire responsibility for the safety of the premises, or a particular part of them. In the present case, the landlord agreed to put the stairway in a safe condition for the defendant’s use, and, assuming that his negligent failure to perform the dxity thus imposed would support this action, we are met with the contention that the declaration plainly shows contributory negligence on the part of the tenant. "When the appellant took possession of the premises on May 4, 1914, she knew, according to the averments of her declaration, that the stairway in question was “out of repair and in a dangerous condition.” She knew that certain of its steps were missing, and yet, more than three weeks thereafter, “while in the ordinary course of her occupation of said premises,” she used the stairway notwithstanding its dangerous condition, and was injured because one of the steps “moved or oscillated.” It is inconceivable that any person of average intelligence should have used this stairway under the conditions disclosed, without [481] knowing that this step was loose; and even if we assume that tbe plaintiff did not know its condition tbe result must be tbe same, for here the situation requires us to rule that tbe means of knowledge was tbe equivalent of actual knowledge. In other words, knowing that the stairway was in a dangerous condition by reason of tbe missing treads, it was her duty, before attempting to use it, to make a reasonable inspection of tbe other treads; and, liad she done so, tbe conclusion is irresistible that she would have discovered the infirmity in tlie tread which cansed her injury. Constructive knowledge, therefore, in the circumstances of this case, is the equivalent of actual knowledge. This was not an emergency nse of a back or kitchen stair, bnt a deliberate use in ordinary course, and tbe plaintiff could not shut her eyes to conditions which should have been obvious to her had she looked, and then charge the landlord with responsibility for the consequences, because of his agreement. McGinn v. French, 107 Wis. 54, 82 N. AV. 724; Thompson v. Clemens, supra. Judgment affirmed, with costs. Affirmed.