Francis H. (Francis Hermann) Bohlen.

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in good condition but also to keep them in repair, White v. Montgomery, 58
Ga. 204 (1877).

"A landlord retaining control of a staircase, or other approach common
to several offices or flats is bound to keep it in repair [but not to light it.
Huggctt v. Aliers, L. R. 1908, 2 K. B. 278: Capcn v. Hall. 21 R. I. 354
(1899) ; Glcason v. Boehm, 58 X. J. L. 475 (1896)], and is liable to a tenant.
Idel V. Mitchell, 5 N. Y. App. Div. 268 (1896) ; Watkins v. Goodall, 138 Alass.
533 (1885) ; Hargrovcs v. Hartopp, L. R. 1905, 1 K. B. 472— or a member of
his family, De Mateo v. Perano, 80 N. J. L. 437 (1910), or a guest of the
tenant injured through its defective condition, Loonev V. McLean, 129 Mass.
33 (1880); Marivcdel v. Cook, 154 :\Iass. 235 (1891); Bollard v. Roberts,
130 N. Y. 269 (1891) ; Miller v. Hancock, L. R. 1893, 2 Q. B. 177; McMartin
V. Hanney, 10 Mac Ph. 411 (Scot., 1872) ; a fortiori, where he places a dan-
gerous obstruction thereon, Brunker v. Cuinniins, 133 Ind. 443 C1892). The
landlord must keep in repair not only the approaches but also every portion
of the premises retained in his control which if in bad condition may en-
danger the safe use of the demised tenements ; Hargroves v. Hartopp, L. R.
1905, 1 K. B. 472, gutter on roof allowed to become clogged; Payne v. Irvin,
144 111. 482 (1893), sign erected upon roof. _

The landlord is bound to keep in repair only so much of the premis:s
retained by him as is necessary to the tenant's use of the demised premises,
but not a portion thereof which he allows the tenants to use for their own
pleasure or convenience, Iz'av v. Hedges, L. R. 9 Q. B. D. 80 (1882), tenants
allowed to dry clothes on the roof; McAlpin v. Powell, 70 X. Y. 126 (18f7),
children of tenement playing on fire escape, which in tenement districts are
customarily and notoriously used by the inmates as balconies.



MCKENZIE V. CHEETHAM 461

Co., 98 X. Y. 245; Minor v. Sharon, 112 Mass, 477; Cesar v.
Karutc, 60 X. Y. 229; Wallace v. Loit, i Daly, 481.^

While the rule caveat emptor applies to lessees for the reason
that they can, if they will, protect themselves by inspection and con-
tract, no such reason exists for applying it to such third persons as
the law denominates strangers and do not stand on the same footing
with the lessee. But when a lessee enters into a dwelling-house under
a lease for years or as a tenant at will, he, in the absence of any
stipulation to the contrary, has full possession and sole control
thereof and it is practically his own private property pro hac. Xo
one, not even the lessor himself, can lawfully enter without the les-
see's permission or invitation express or implied. Mellen v. Millett,
126 Mass. 545. The law leaves it to the tenant to say wdio shall be
his guest in his private dwelling-house. And if a guest docs so
enter and while there is injured, without his own fault, by some
defect therein, he must seek his damages from him whose invitation
impliedly assured him he could enter safely and who alone is re-
sponsible for the defect which caused the injury. In such a case the
guest can have no greater claim against the lessor than the lessee
himself and the members of his family have. Robbins v, Jones, 15
C. B. (X. S.) 221 : Bozve v. Himking, 135 Mass. 380, 383; Burdick
v. Cheadle, 20 O. St. 393 (S. C. 20 Am. R. 767) ; Moore v. Logan, I.
& S. Co. 4 Cent. R. 505-6;* O'Brien v. Capzvell, 59 Barb. 497; Nel-
son V. Liv. B. Co. (L. R.) 2 C. P. D. 311; i Thomp. Xeg. 323;
Shear. & R. Xeg. § 503.

If when let, premises are in a condition which is dangerous to
the public, or with a nuisance upon them, the landlord may be liable
to strangers for injuries resulting therefrom; for by the letting of
them in that condition and receiving rent therefor he is considered
as authorizing the continuance of the nuisance. Nugent v. B. C.
& M. R. R. 80 Maine, 62, yy, 78, and cases cited ; Godley v. Hagerty,
20 Pa. St. 387; Stratton v. Staples, 59 Maine, 94; Burbank v.
Bethel, S. M. Co. 75 Maine, 373. 383 ; Nauss v. Brua, 107 Pa. St.
85 ; Fozv V. Roberts, 108 Pa. St. 489 ; Dalay v. Savage, 145 Mass. 38 ;
Joyce V. Martin, 15 R. I. 558; Ahem v. Steele, 115 X. Y. 203.

Our opinion, therefore, is that the exceptions must be sustained.

Exceptions sitstained.^

Peters, C. J., Walton, Libbey, Haskell and Whitehouse,
JJ., concurred.®

° Accord: also. Miner, Read and Garrctte v. McNamara, 72 Atl. 133
(Conn., 1909); Coke v. Gutkcse, 80 Ky. 598 (1883); Robinson v. Hevcrin,
50 Pa. S. C. 546 (1912) ; Burdick v. Cheadle, 26 Ohio St. 393 (1875), shelves
negligently put up by landlord fell and injured customer of tenant — landlord
not liable. Sec also, Langabaugli v. Anderson, 68 Ohio St. 131 (1903), lessor
of oil land not liable for escape of oil stored by tenant, cf. Siml>son v. Still-
zvater Water Co., 02 Minn. 441 (1895), and Kray v. Mnggli, 27 ^^linn. 231
(1899).

In Hines v. ]Villcox, 96 Tenn. 148, 163 (1896): 100 Tcnn. 328 (1897).
it is held, the landlord is equally liable to a tenant or the tenant's invitee or
guest, if he knows or conceals the dangerous defect or if. by reasonable dili-
gence he could have ascertained it, provided the tenant exercises reasonable
diligence on his part : and the lessee's servant may recover in such case
though the lessee by reason of his fault, neglect or knowledge of the danger
could not have maintained an action, Bailev v. Kellv, 86 Kans. 911 (1912).
In Moore v. Steljes, 69 Fed. 518 (1895), VVheeler, )., held that a landlord
leasing premises with a warranty was liable to the child of a tenant for the
fall of a ceiling thereon.



462 OXFORD V. LEATHE



OXFORD V. LEATHE.

Supreme Judicial Court of Massachusetts, 1896. 165 Mass. 254.

Holmes, J. This is an action against the owner of a building,
for personal injuries caused by the giving way of a platform upon
which the plaintiff was standing. Some days before the accident
the defendant had made a written agreement that he had "leased
the W'oburn Rink and seats now therein for four nights, August
2d, 3d, 4th, & 5th, 1893, building to be lighted," to one Gleason,
all money in the box office to be under the defendant's control until
twenty dollars was paid each night. Gleason's understood purpose
was to give exhibitions of horse training. On the evening of August
9, Gleason was holding over on the foregoing terms by an oral un-
derstanding. An entertainment was to take place, the plaintiff with
others had ascended a flight of stairs to the above mentioned plat-

*7 Atl. 198 (Pa., 1886).

"The presiding justice in order to give progress to the case upon the
question of damages ruled pro forma, as matter of law. that under the facts,
as developed by the evidence, the defendant impliedly, at least, invited the
plaintiff to pass over the premises on the occasion of his injury, — that there
was an implied invitation.

To this ruling and instruction, the defendant excepted. The jury returned
a verdict for the plaintiff, and assessed the damages at two hundred and fifty
dollars.

'Accord: Lane v. Cox, L. R. 1897 i Q. B. 415; Roche v. Saztyer, 176
Mass. 71 (1900), and see charge to jury by Thompson, J., Dyer v. Robinson,
no Fed. 99 (6th Circ, 1899).

Article 2322 Civil Code of Louisiana, which provides that "an owner of
a building is answerable for the damage caused by its ruin" due to "neglect
to repair it" or "a vice in original construction" was construed in Cristador v.
I'on Behren's heirs, 119 La. Ann. 1025 (1907), following decisions of the
Court of Appeals of Paris, to make a landlord liable to the guests, business or
social, of a tenant, limiting McConnell v. Semby, 48 La. Ann. 1433 (1896),
which had followed McKenzic v. Cheetham and had held the landlord liable
only to neighbors and passengers on adjacent highways, to cases when the in-
jury was due to some abnormal use of the demised premises by the tenant.

In Fellows v. Gilhuber, 82 Wis. 639 (1892) the Court attaches much im-
portance to the fact that the landlord has not covenanted with the tenant to
keep in repair the awning by whose fall the plaintiff was injured. However,
the rights and obligations arising out of the landlord's promise or covenant
to repair are wholly contractual, Tuttle v. Gilbert Co., 145 Mass. 169 (1887) ;
Hahn v. Roach, 7 Northampton Co. Rep. 21 (Pa., 1897). The social or busi-
ness guest of a tenant or even a member of the latter's family, not being
party to the contract, cannot recover for injuries caused by its breach, Cava-
lier V. Pope, L. R. 1905, 2 K. B. 757, p. 765, L. R. 1906, A. C. 428; Clancy v.
Byrne, 56 N. Y. 129 (1874) ; Davis v. Smith, 26 R. L 129 (1904) ; Miller v.
Rinaldo, 21 N. Y. Mis. 470 (1897) ; Thompson v. Clemens, 96 Md. 196 (1902) ;
Contra, Perez v. Rabaud, 76 Tex. 191 (1890) ; Sontag v. O'Hare, jt, 111. App.
432 (1897) ; Schzvandt v. Metzger Oil Co., 93 111. App. 365 (1900) ; Barron v.
Licdloff, 95 Minn. 474 (1905), subtenant of lessee. Nor can the tenant him-
self recover for personal injuries to himself or for the death of a member
of his family caused by the landlord's breach of his covenant to repair — the
damages in contemplation of the parties as likely to flow from its breach being
the tenant's loss of the profitable use of the premises, Flynn v. liatton, 43
How. Pr. 333 (N. Y., 1872) or the cost to which the tenant will be put to
effect the repairs, himself, Hamilton v. Feary, 8 Ind. .\pp. 615 '''189.3^ : Collins
V. Karatopsky, 36 Ark. 316 (1880) ; Shick v. Fleischhaucr. 26 N. "S". .^"•^. Div.
210 (1898). So in Dancy v. Walz, 112 N. Y. App. Div. 355 (1906) it was
neld that a tenant could not recover damages for the death of his cliild due
to his landlord's failure to supply his flat with heat from a central heating
plan — but see Railton v. Taylor, 20 R. I. 279 (1897), where the tenant's prop-
erty was injured by smoke, etc., from a defective central heating plant.



ox FORD X '. LEAT H E 463

form, and was waiting upon it, in front of the entrance, for the
doors to open, when it fell.

It is not necessary to consider whether the agreement was a
lease or a license, although we regard it as a license. Johnson v.
Wilkinson, 139 ^lass. 3. Taylor v. Caldwell, 3 B. & S. 826, 832.
Whatever it was, the defendant must be taken, or at least might
have been found, to have contemplated the use of the stairs and
platform, as they were, by the public for the purpose of going to
the show. If the jury found that the use actually made of the
platform was something which the defendant was bound to have
contemplated, he was liable for any neglect of proper precautions to
make it safe, whether Gleason also was to blame or not, just as
in the case of premises let with a nuisance upon them. Daley v.
Savage, 145 Mass. 38, 41. Clifford v. Atlantic Cotton Mills, 146
jMass. 47, 49. Finnegan v. Fall River Gas Works, 159 Mass. 311.
Edzi'ords v. Nciv York & Harlem Railroad, 98 N. Y. 245, 249, 253.
Carson v. Godley. 26 Penn. St. iii. Joyce v. Martin, 15 R. I. 558,
562. Albert v. State, 66 Md. 325, 338. Foidkes v. Metropolitan
District Raihvay, 5 C. P. D. 157, 159; 5". C. 4 C. P. D. 267. We
do not intend at all to enlarge the liability of landlords in cases
where heretofore it has been decided that only the occupants of
the land were responsible. \\'e mean by contemplated more than
foreseen. A landlord may regard many things as likely to happen
for which he will not have to answer, but this case goes much beyond
that point. The object of the contract with Gleason was that the
public should be invited, since it was from the public that the de-
fendant was to get his pay. At the same time, the short and inter-
rupted character of the occupation allowed to Gleason made it
obvious that the safety of the building must be left mainly to the
defendant.

There was evidence that the support of the platform w^as man-
ifestly defective, and, beside w-hat the jury may have found from
the description, there was express testimony that it was not prop-
erly constructed. See Lincoln v. Comtnonzi'ealth, 164 Mass. 368,
379. Such a case could not be taken from the jury.

Exceptions overruled}

^Accord: Camp v. Wood, ;6 X. Y. 92 (1879), defective approaches to a
hall let for one night for a dance — plaintiff paid for admission to the lessees
— it would appear that the defendant retained full control of the approaches;
Fox V Buffalo Park, 21 N. Y. App. Div. 321 (1897), the defendant leased for
$200, to a bicycling club for their race meeting, its track and the stands which
it had had erected thereon by a contractor according to the plans and under
the supervision of a competent architect. The plaintiff, a ticket having been
bought for her, went on the grand stand which collapsed, due to a fault of
original construction. Held, that defendant was liable ; by Ward, J., because
if it choose to erect a structure for the public accommodation, it must answer
for its careful construction ; by Green. J., because there was evidence of lack
of proper inspection. See Godley v. Hagerty, 20 Pa. sS'7 (1853') and Carsou
V. Godley, 26 Pa. iii (1856'). buildings erected by owner acting as his own
architect, for express purpose of leasing to United States government as
warehouses for heavy storage, collapsed from faulty construction.



464 BARRETT, ADMR. V. LAKE ONTARIO llEACII IMP. CO.



BARRETT, AD:^IINISTRAT0R, t-. LAKE ONTARIO BEACH

IMPROVEMENT CO.

Court of Appeals of Ncn' York, 1903. 174 Xczc York 310.

Appeal from an order of the Appellate Division of the Supreme
Court in the fourth judicial department, entered February 6, 1902,
which reversed an order of a Trial Term denying a motion to set
aside a verdict in favor of plaintiff and for a new trial and granted
a new trial.

The action was brought against the defendant to recover dam-
ages for the death of the plaintiff's intestate; which is alleged to
have been caused by the negligent construction of a toboggan slide.
The plaintiff recovered a verdict ; but, upon appeal to the Appellate
Division, in the fourth department, the judgment entered upon the
verdict was reversed and a new trial was ordered, "upon questions
of law only; the facts having been examined and no error found
therein."

The defendant is the owner of lands on the beach of Lake On-
tario. Among the properties was a bathing establishment to which
was appurtenant or incidental a toboggan slide, constructed, as it
existed down to the time of the trial in 1896. The slide consisted
of a platform, eleven feet square and twenty-five feet from the
ground, from which a trough ran on an incline down to the water,
on which bathers slid on toboggans. The platform was constantly
wet and slippery from the water brought there by the wet suits of
the bathers. Around the platform was a railing, the open space be-
tween the lower rail and the platfotTn being twenty-one inches. The
plaintiff's intestate in using the slide in some way slipped and fell
from the platform through the space between it and the lower rail
of the railing.

The accident occurred in August, 1900, and the premises were
in the possession of one Briggs, under a lease by the defendant for
the season, at a fixed rental. By the terms of the lease, the lessee
could make no alteration in the premises, without the written con-
sent of the lessor, and reservation was made to the latter of the
right to permit its officers and agents to enter upon the premises, at
any time, for the purpose of examination, or of doing any work
necessary for the care and preservation of the property.^

Gray, J. The appeal from the order of reversal permits of our
reviewing any of the questions of law, which were before the Appel-
late Division. (Albring v. A^. F. C. & H. R. R. R. Co., 174 N.

Y. 179.)

Upon the facts which have been stated, the first question for
our consideration, and one which is much dwelt upon by the defend-
ant respondent, is whether, if the accident complained of is attrib-
utable to negligence in the construction of the structure of the plat-
form, to be used in connection with the toboggan slide, the defendant
can be held to have been responsible. While, as a general rule, a
lessor, in the absence of any agreement, or of fraud, is not liable



*The facts are somewhat condensed and arguments of counsel omitted.



BARRETT, ADMR. Z'. LAKE ONTARIO BEACH IMP. CO. 465

to the lessee for the condition, or tcnantable use, of premises demised,
(Sutton V. Temple, 12 M. & \V. 52; Jaffc v. Hartcan, 56 X. Y. 398),
that rule is subject to exceptions. If the premises which are rented
are in such a dangerous condition, as to constitute a nuisance at the
time of the renting, the lessor remains liable for the conseciuences
of the nuisance, notwithstanding that his lessee may also be liable.
(Szvords V. Edgar, 59 N. Y. 28.) If the premises are rented for a
public use for which he knows that they are unfit and dangerous,
he is guilty of negligence and may become responsible to persons
suffering injury, while rightfully using them. Such instances would
be where he lets a warehouse, so imperfectly constructed that the
floors will not support the weight necessarily upon them; or where
he lets a building for public amusements, or exhibitions, or other pub-
lic purposes.- and its construction is so unsafe, structurally, as to
be the cause of injury to any one. (Francis v. CockreU, L. R. [5
Q. B.l 184, 501 ; Fox V. Buffalo Park, 21 App. Div. 321 ; affirmed,
163 N. Y. 559; Edzeards v. N. Y. & H. R. R. Co., 98 N.
Y. 245.) This liability for injuries, attributable to the unfit condi-
tion of premises, which have been let for a specific purpose, rests
upon negligence; that is to say, upon the omission of a duty to use
due care in their erection, or construction. The law holds the
lessor responsible, not upon any contractual obligation, but because
of the delictum. If, as claimed in this case, a person has erected
a structure and designed it for the use of the public, which was
either structurally defective, or which was faulty, in failing to
afford what, in the judgment of reasonable men, would be a proper
and adequate protection to persons using it, then he has incurred
the risk of being made responsible for occurrences resulting in
injurv to any one by reason of the faulty construction. The conten-
tion, in this case, is that the toboggan structure was unsafe for the
specific use for which the defendant intended and let it to Briggs
and the question is, simply, wdiether the platform was built in so
reasonably safe a manner, as to prevent the occurrence of accidents,
which men, of ordinary prudence and knowing the nature of the
public use to which it was to be put, might have foreseen as pos-



- This statement of the effect of Szcords v. Edgar first appears in Edzvards
V. R. R., 98 N. Y. 245 (1885), per Earl, J., p. 254 and per Rugcr, C. J., p. 263.
In Szi'ords v. Edgar the decision is primarily based on a much broader ground,
that the dock being when leased untit and dangerous for the only use which
could be made of it, namely as a place at which vessels might unload, for
which use it was rented and which involved as a necessary incident the
presence of such persons as the plaintiff, was a nuisance as to him. To him
the place was, so far as the defendants were concerned, "as it were a public
place or highway upon which he had the right to go". In a word it was a
place where the defendants ought to expect that persons such as the plaintiff
would rightfully be. The dock was structurally fit and proper, there was no
latent defect, its unfitness was due solely to lack of repair and was patent
and known to the lessee who had covenanted to repair and was admittedly
also liable. Cf. Edzcards v. R. R., suf>ra, where the defendant was held not
liable for the fall of a gallery not designed nor specially, certainly not ex-
clusively, adapted for the use to which it was put by lessee who had by the
[ease the riglit to make such temporary structural changes as might be neces-
sary to fit it for his purposes ; as to this last, compare the terms of the lease in
the principal case.



466 BARRETT, ADMR. V. LAKE ONTARIO BEACH IMP. CO.

sible. There is a difference between this case and other cases in
this, that the defect in question was not in the supports of the
structure, but in the manner in which the raihng around the platform
was constructed ; which rendered it possible for a person to fall
through it to the ground. The difference, however, is not one which
affects the doctrine of the lessor's responsibility; for, obviously
enough, the essential principle of the doctrine is the omission, or the
neglect, of a duty in preparing a structure, to be put to a particular
public use, to make it reasonably fit, or safe, for that use.

In my opinion, the defendant, having built the structure for
the amusement, or entertainment, of the public, impliedly, warranted
that it might be used with such safety to the persons as could reason-
ablv be demanded.

If, then, the defendant could be made responsible for any neg-
lect in the construction in this toboggan slide, the question, then,
presents itself whether, upon the evidence, the court could say that,
as matter of law, the railing constructed about the platform was a
reasonably sufficient protection to the persons using it. However
imperfectly described the occurrence of this accident, it is, certainly,
evident that the railing was not, as it existed, sufficient to prevent
a person falling through its openings. Whether the deceased slipped,
or whether, stumbling, he lost his balance, when in the act of making
use of the slide, is not material ; because, in either event, the partic-
ular form of sport to be indulged in rendered slipping, or stumbling,
a reasonably possibly occurrence. All persons were invited, upon
the payment of an entrance fee, to make use of this structure and
the amusement provided for involved some risks. These risks
attending an amusement which was prepared to allure the public
for their emolument, the proprietors, or lessors, were bound to an-
ticipate and to protect against, so far as they were not necessarily
incidental thereto. A stricter measure of duty was involved, in
preparing such a structure to induce the public use, and it was re-
quired that the risks should be minimized, to the extent that reason-
ably prudent men might foresee the necessity of doing so. The
risk of falling from the platform may have been apparent to persons
using it ; but those persons had the right to assume that they went
there without incurring any risk which might have been reasonably
anticipated by the proprietor of the concern. They came there by
invitation and with the right to believe that every reasonable care
had been taken for their safety, in the erection of the slide. That
an accident of the same kind had never before happened furnishes
no ground of defense, if it might, in reason, have been anticipated.
(Cleveland v. N. J. Steamboat Co., 125 N. Y. 299; Donnelly v. City
of Rochester, 166 ib. 315.)

In my opinion, the situation being such that a fall from the
platform was a possible occurrence to the majority, if not to all, of
the persons who used the toboggan slide, a question of fact was
presented upon the evidence whether the platform structure had
been constructed with that due care, which, in the judgment of pru-
dent men, in view of the purpose, should have been exercised by the
defendant. That question was for the jury to answer.



GILL Z'. MIDDLETON 4^7

I think that wliethcr the deceased was free from contributory
r-egligence was properly left to the jury. The circumstances, under
which the deceased was seen to fall, furnish no inference that he
was careless. He was a lad of some fifteen years of age, concedcdly
bright and active, and he was engaged in doing something to which
he was expressly invited. The court could ncjt hol<l, as matter of
law, under the circumstances, that he had contributed to the result.

1 think that tlie order of the Appellate Division should be re-
versed and that judgment should be ordered to be entered upon the
verdict for the plaintiff, with costs in all the courts.

Parki:r, Ch. J., O'Brien, Bartlett, Haigiit, Martin and
Werner, JJ., concur.

Order reversed, etc.^



GILL z'. MIDDLETON.
Supreme Judicial Court of Massachusetts, 1870. 105 Mass. 477.

Tort for injuries received by the female plaintiff' through falling
through the floor of an outhouse. At the trial the following facts
appeared.

The defendant had leased a tenement to the husband of the
female plaintiff. The floor of an outhouse appurtenant thereto