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well as the different cases in which it does not | assumed or representation made, by the landso apply as to exclude parol evidence, is forci- lord; so that if the landlord agreed to do any. bly stated, and fully commented on in Fergu- thing to the premises to make them safe, or son v. Rafferty (Pa.) 6 L. R. A. 33, and notes; represented that he had made them safe, which Durkin v. Cobleigh (Mass.) 17 L. R. A. 270, and induced the plaintiff to make the contract, or notes.

which was to be a part of the contract, it was It must be admitted that, in the multitude pot embraced in the writing. Indeed, the recof exceptions to the general rule, much confu- ord shows that not all the requirements made sion bas arisen, not only in our state, but else- of the tenant are embraced; for the parol evi. where; so that the exact limit to be placed upon dence, as well as the pote filed, shows that it the exceptions depends, not only upon the pe- was one of the vital terms of the contract that culiar facts of each case, but also, to some ex-, Mrs. Hines should bind her separate estate for tent, upon the peculiar cast of thought of the the payment of the notes, and that she did atindividuals composing the court, as is substan- tempt to do so in the notes. This was an intially said in Richardson V. Thompson, 1 dependent, collateral agreement to the contract Humph. 154. Nevertheless, the exceptions of rental, and an inducement to make it not are as well sustained and based upon authority embraced in the lease contract which was writas is the general rule, and there remains only ten. We are of opinion it was error to exclude the application of the rule and its exceptions evidence tending io show that the defendant to each case as it arises. Looking to the case agreed to put the premises in safe condition, as presented in this record, it is evident at a if such were made before the contract was glance that the written contract set out only re. closed, and also evidence tending to show that, lates to the obligation and undertaking imposed at the time the contract was signed, defendant upon the tenant, and it makes not the remotest or his agent represented that they had been put reference to any act to be done, or obligation in safe condition as promised.

App. 148.

fore venturing to reside in or upon the premises court held that if the fall was caused because the tbat they were unsafe, and the defect rendering owner failed to provide any means of egress whatthem so is discernible, the lessee is presumed to ever or througb some patent defect in the plan of have bad notice of such defect and accepted the the contrivance the tenants could not recover, but risk incident thereto if he occupies the premises. if the structure was proper but was insufficiently if he could have discovered the defect by examina- secured and therefore gave way under the attion he was not justified, in view of the fact that tempted use there might perhaps be a recovery. he suspected the safety of the premises, in relying Smith v. Buttner, 90 Cal. 95. on the assurance of the servant that they were If the injury results from a nuisance on the land. safe. Daley v. Quick, 99 Cal. 179.

lord's adjoining property there may be a recovery. As to neglect to provide fire escapes, see note to Alston v. Grant, 3 El. & Bl.128, 2C.L. Rep. 833, 3 L. Rose v. King (Ohio) 15 L. R. A. 160.

J. Q. B. N. S. 163, 18 Jur. 332.

Where the landlord removes the gas fixtures Landlord actively negligent.

without plugging the ends of the openings, aod The landlord is liable for injuries caused by neg. subsequently permits gas to be turned into the ligence in making repairs. Mitchell v. Plaut, 21 III. pipes, by reason of wbich an explosion occurs and

injures the tenant, be will be liable for the injury. If the landlord undertakes to make repairs, and Kimmel) v. Burfeind, 2 Daly, 155. the tenant is injured by the negligent manner in In Meany v. Abbott, 6 Phila. 256, where the land. wbich they are made, the landlord is liable for the lord employed a plumber to make certain additions injury. Callahan v. Loughran, 102 Cal. 476; Little to the building, the court held that he was not liav. Macadaras, 29 Mo. App. 332, 38 Mo. App. 187. ble for the defects in the work when done, on tbe

If the landlord undertakes to make repairs, and ground that the plumber was not his servant for does it so unskilfully as to subsequently cause an whose acts he was liable. injury to the tenant, he will be liable therefor. So, if the landlord, with the consent of tbe tenGregor v. Cady, 82 Mo. 131.

ant, lets the repairs out to a contractor, he will A landlord whose negligence in making ordinary not be liable for injuries caused by the contractor's repairs is the cause of a personal injury to the ten- negligence. Francisco v. Brinkley,cited in 3 King's ant is liable therefor. Gill v. Middleton, 105 Mass. Dig. (Tenp.) 2d ed. 8 3515. 477, 7 Am. Rep. 548. If the owner in making repairs negligently causes

Contributory negligence. the building to burn he will be liable to the tenant The tenant cannot recover if the unsafe confor his injury. Hine v. Cushing, 53 Hun, 519. dition of the premises was his own fault. Kabn v.

If the repairs are negligently made the tenant Love, 3 Or. 206. may recover the damages which he suffers because If the tenant, knowing that a stairway is danger. of the defect, if he was ignorant that the premises ous and bas not been used for more than a year, had not been made safe. Walker v. Swayzee, 3 voluntarily attempts to use it without adequate Abb. Pr. 138.

cause, she will be guilty of such negligence as to In Franklin v. Brown, A1 Jones & S. 474, where prevent a recovery against the landlord, although the injury was caused by noxious gases which came be has not complied with his promise to repair it. tbrough the window and which the evidence Town v. Armstrong, 75 Mich. 580. showed neither party knew of before the signing In case the landlord does not comply with bis of the lease, so that there was nothing to show neg- agreement to make repairs, the tenant cannot, ligence on the part of the landlord, the court says, knowing that his property will be exposed to inif guilty of negligence or other delictum which jury if left on the premises, take the hazard of leads directly to the accident and wrong com- leaving it there at the risk of the landlord. If he plained of, the landlord is liable.

does leave it there, and the property is injured, he Where the owner raised the leased house and did cannot recover from the landlord therefor. Cook not provide a safe and proper means of entrance v. Soule, 56 N. Y. 420. to and egress from it and the tenant's wife fell and In Scott v. Simons, 54 N. H. 426, the court says was injured in attempting to leave the house, the that the landlord will be liable if be bas negliThe learned trial judge, however, excluded , art v. Phænix Ins. Co. 9 Lea, 104, 112. We the evidence also upon another ground; and think that it was therefore error in the trial that was because, in his opinion, the evidence l judge to determine these questions, and exoffered did not go to the extent of setting clude all evidence in regard to them. up a distinct collateral agreement to make the The court charged the jury, among other premises safe, or an assurance that they bad things, substantially, that if the landlord knew been made safe, but that the evidence only the unsafe condition of the premises, and conwent to show complainants about the sanitary cealed the fact from the tenant, and that she condition of the premises, and promises in re- did not know of their unsafe condition, or gard to the grates and windows and otber could not have known by the exercise of minor details and assurances only as to them. proper care and diligence, then she could reThe most material evidence upon this question cover, etc. It will be noted that the learned is that of plaintiff, which is somewhat indeti- trial judge, in this charge, makes the tenant renite. She does not, in her evidence, mention sponsible, not only for the facts known to her, the porch, and does refer to the windows and but also such as she could have known by the grates, and general sanitary condition of the exercise of proper care and diligence; but he premises; but she also says that the promise was only holds the landlord responsible for his acto put the house in good repair,--safe repair. tual knowledge, and not for such knowledge as The question as to whether the entire contract he might have bad by the exercise of proper was reduced to writing, or an independent col care and diligence. We think the great weigh. lateral agreement was made, was a question of of authority is that, if a landlord lease premises fact; and where there was any evidence to sus- wbich are at the time in an unsafe and dangertain the contention, it was a matter for the jury ous condition, he will be liable to his tenant to determine, and not for the court. Cobb v. for damages that may result, if he knows the Wallace, 5 Coldw. 540, 98 Am. Dec. 435; Stew-fact and conceals it, or if, by reasonable care

gently constructed the premises or negligently had promised to repair, if the proximate cause of suffered them to remain defective after notice, the fall was the act of an employee of an indethat they bave become so. But it bolds that the pendent contractor in the room above, who pushed evidence did not show that he had done either. his foot through the ceiling. Fitzgerald v. TimThe court further says the landlord might be lia- oney, 13 Misc. 327. ble to the tenant if after notice of the defect he failed to repair it, but "we think not to one who

Measure of damages. after being aware of the defect unnecessarily ex- An express contract between landlord and tenposed bis goods to injury by it."

ant that the former is to repair the demised If the tenant continues to occupy knowing of premises does not render bim liable for an injury the dangerous condition of the premises he will to the tenant arising from want of repair, although be guilty of contributory negligence, and cannot the tenant has notifed him of the unsafe condition recover for the injury caused by the accident. of the premises. The tenant's only remedy is to Kampinsky v. Hallo, 52 N. Y. S. R. 265.

make the repairs at the expense of the landlord.. If the tenant, knowing of the defective condition Brown v. Toronto General Hospital, 23 Ont. Rep of the premises, continues to use them and is in- 599. jured by the defect, contributory negligence will In case the owner does not put the building in bar a recovery for tbe injury. Sanders v. Smith, repair as he agreed to do the tenant cannot recover 5 Misc. 1.

for the loss of the services of one of his employees, In Cantrell v. Fowler, 32 8. C. 589, it is said ad opera singer, who was made ill by the unsuitable while the landlord would be liable for all injury condition of the premises. New York Academy of which the tenant might sustain because of bis Music v. Hackett, 2 Hilt. 217. breach of contract to repair, yet the tenant should Where the leasing of a house is procured by not stand quietly by and voluntarily assume the fraud in statements as to the capacity of the furrisk of injury, thus contributing to his own loss. nace the tenant may retain the premises, and reHe ought to make the repairs himself, and charge cover his damages, which will be the difference bethe sum to the landlord.

tween the rental value of the property as it is and A tenant bas no right to use demised premises as it would have been had it been as represented. which be kpows to be unfit for Occupation Pryor v. Foster, 130 N. Y. 171. in such a way as to cause damage and loss, and If the landlord refuses to comply with bis agreethen seek to recover damages from his land. ment to repair a dangerous pit-fall near the well, lord for the injury so occasioned by his own act. and the tenant falls into it and is injured, he cannot Nichol v. Dusenbury, cited in 2 Hilt. 223.

recover for the injury, since the damages are too In Arnold v. Clark, 13 Jones & s. 252, the court remote. He should have had the repairs made at says although the representations as to the safe- the expense of the landlord. Hamilton v. Feary, 8. ty of the premises were false the tenant could Ind. App. 615. not, having knowledge of the falsehood, take the In Flynn v. Hatton, 43 How. Pr. 333, it is said the risk of continuing its use and look to the landlord ordinary damages for breach of a general agreeto indemnify him for any loss that he might sus- ment to keep the premises in repair are the extain. And the same would be true in reference to penses of repair and the loss of the use of the a promise to repair. The measure of damages is premises wbile the party contracting was in de. wbat the repairs would cost if made by the tenant, fault, and such an agreement in no way contemor the loss in the use of the premises while making plates any destruction of life or casualties to the them, or the difference in rental value with and person or property which might accidentally result without them.

from an omission to fulfil the agreement. And that principle was followed in Kabus v. Frost, 18 Jones & S. 72.

Distinguishable cases.

Undoubtedly the landlord should not be perProximate cause.

mitted to shield himself behind bis bare statement A landlord is not liable for injuries to a tenant that he did not know if under all the circumstanby the fall of plaster which was loose and wbich he ces it is evident that he should have known of the

and diligence he could have known of such Without going further into the case, and dangerous and unsafe condition, provided rea- without commenting on the vast array of ausonable care and diligence are exercised by the thorities presented by the defendant's attorneys tenant on his part. Taylor, Land. & T. 7th ed. in support of the trial judge's position, some $ 175; 2 Wood, Land. & T. p. 854, and note; of which are in conflict with the views herein Shearm. & Redf. Neg. SS 709–711; Cowen v. given, we think the judgment of the court below Sunderland, 145 Mass. 363; Coke v. Gutkese, must be reversed, and the cause remanded for a 80 Ky. 598, 44 Am. Rep. 499; Cesar v. Karutz, new trial. Appellee will pay costs of appeal. 60 N. Y. 229, 19 Am. Rep. 164; Lowell v. Spaulding, 50 Am. Dec. 780, note; Woodf. A petition for rehearing was subsequently Land. & T. 12th ed. 707; Godley v. Hagerty, filed, in response to which Wilkes, J., on 20 Pa. 387, 59 Am. Dec. 731; Carson v. Godley, March 5, 1896, handed down the following 26 Pa. 111, 67 Am. Dec. 404; Eduards v. New response, which applies also to Stenberg v. Will York & H. R. Co. 98 N. Y. 249, 50 Am. Rep. cox (Tenn.) ante, 615: 659; Gill v. Middleton, 105 Mass. 477, 70 Am. In these causes petitions to rehear have been Rep. 548. The same principle is held in our filed, and pressed with much earnestness. own case of Young v. Bransford, 12 Lea, 244, The trial judge in the court below correctly citing 1 Thomp. Neg. 317; Whart. Neg. S$ 817, laid down the law in regard to the tenant, and 845. See also Timlin v. Standard Oil Co. 126 imposed upon her the risk of the premises, if N. Y. 514; Ahern v. Steele, 115 N. Y. 203, 5 she knew, or by the exercise of reasonable care L. R. A. 446; Maywood v. Logan, 78 Mich. and diligence could have known, of their dan135; Lindsey V. Leighton, 150 Mass. 285; gerous condition. It is complained that this 12 Am. & Eng. Enc. Law, pp. 687, 691, court imposed upon the landlord a like degree note. This is not in conflict with the gen- of care in ascertaining whether his premises eral rule that, in the absence of any stipula- were in safe condition when he let them. tion or statement, there is no warranty that the The correctness of the rule and liability of the premises are in a habitable condition, and no landlord is not denied when he has actual obligation to repair, as held in Southern Oil knowledge of the danger and fails to disclose Works v. Bickford, 14 Lea, 657, and Banks v. it, but denied so far as it requires him to exWhite, 1 Sneed, 614; but the cases proceed ercise reasonable care and diligence to acupon the idea that the premises, when leased, quaint himself with their coodition. The are unsafe and that fact is known to the land- facts assumed by counsel in arguing this lord and concealed by him from the tenant, or point are worthy of notice. In one portion of might have been known by him by the exer- his briefs he says: “Neither the landlord nor cise of reasonable care and diligence. The lia- bis agents bad any notion (we suppose he bility does not arise upon any question of con- means notice or knowledge] of the condition tract, but upon the obligation to the tenant not of the porch. ... They so swear, and there is to expose him to danger of which tbe landlord no contradictory evidence." In another por knows, or could know by reasonable care, nor tion of his briefs he says: “The premises is it done away with by the fact that the par. were old, and, to my belief, the porch was ties examined the premises, and the tenant did | obviously dangerous at the outset.” And not discover the defect if he exercised reason-again: “The porch was, at the outset, obvi. able diligence. This view of the case was pre- ously, out of fix. No ordinarily careful person sented in the second count of plaintiff's declara- would have used it. That is the simple truth tioc. Upon this feature of the case the learned of the case. We think the evidence tends to trial judge charged the jury, among other show a state of facts between these two exthings: • If the plaintiff had any right to re-tremes, to wit, that the porch was unsafe when cover, her right must depend upon what took the premises were let, partly from the manner place after the plaintiff took possession of the of construction, and partly from age, and that premises, and before the accident occurred.” this was either known to, or by reasonable care

defect. But the cases cited above seem to indicate / whether or not he ought to have known that the that the cases are few in which the landlord, not covered vault was dangerous. •In State, Bashe, v. actually knowing of a defect, should be charged Boyce, 73 Md. 469, the injury occurred on a wharf, with notice when the tenant should not be charged as to which there is an inclination to make an exwith the same notice. In Spellman v. Bannigan, 36 ception to the general rule. See note to McConnell Hun, 174, the expression is used that the landlord 5. Lemley (La. Ann.) ante, 609. In Carson v. Godley, would be liable if he knew or “from the facts and 23 Pa. 111, 67 Am. Dec. 404, the owner constructed circumstances in the exercise of ordinary care and the building negligently in view of the uses to which prudence be should have known' of the defect, it was to be put. In Cope v. Gutkese, 80 Ky. 598, 44 and in Booth v. Merriam, 155 Mass. 521, it is said the Am. Rep. 499, it was an admitted fact in the case landlord must disclose concealed defects of which that the owner knew of the defect. he bas "or ougbt to have knowledge." In each case In Lindsey v. Leighton, 150 Mass. 285, where it is the expression is a dictum. Of the cases cited in the said that it was not necessary to show that the landrehearing opinion in HINES V. WILLCOX as contain: lord had actual knowledge of the defect, that his ing such an expression Martin v. Richards, 155 duty was that of due care, and ignorance of the deMass. 381, was a case of illness caused by a con- fect was no defense, the injury occurred on the cealed vault which had been covered by a plat- common stairway of a tenement house, as to which form. The question was as to the admissibility of an entirely different rule applies from that applicaevidence. The court intimates that there might be ble to cases where the tenant is in possession of a recovery if all the admissible evidence would the entire property. See note to Dollard v. Roberts warrant the jury in finding that at the time of the (N. Y.) 14 L. R. A. 239. letting the defendant knew the source of danger, Moynihan v. Allyn, 162 Mass. 272, was also the case and knew or ought to have known that dangerex- of an injury on a common passage of a tenement isted. There the facts were all known to the land- house. lord or his agent, and the only question was

H. P. F.

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could have been known to, the landlord; but a contract to make the premises safe, or a it was not so obviously dangerous as to have warranty of their condition; and, keeping this deterred an ordinarily careful person from rule in view, the tenant and his boarder are using it, or seeing its danger. It is said that entitled to as much protection against the landthe landlord's liability to his tenant is more lord as is the stranger passing along the street restricted than it is to third persons, and this or occupying adjoining premises. It cannot is unquestionably so, in so far as it rests upon be the law that the owner of an hotel which is the contract between the parties, and want of in an unsafe condition, knos to him to be so, care in the tenant; but, in this and similar cases, or by reasonable care and diligence he could there is a separate and distinct ground of lia-know, can lease it to a tenant, who exercises bility, depending, not upon contract or want reasonable care and diligence, and does not of contract, but upon the obligation the land- discover the danger, and then escape liability lord or landowner is under to his tenant, as to either the keeper of the hotel, or his family well as third persons, not to expose them to or servants, or the persons who enter the hotel danger which he knows or could know by the for its accommodation. What the hotel exercise of reasonable diligence. The rule laid keeper's liability may be at the same time is down does not place upon the landlord the pot a question now before us.

While many obligation of an insurer or warrantor by con- of the cases cited in the opinion are cases tract, nor does it impose the extreme duty of where the liability was held to exist as to constant care and inspection, but it does impose third persons, there is no difference between upon bim the duty of reasonable care and such third persons and the tenant and his diligence to inform himself of the condition of servants, the matter of contract and negligence the property which he proposes to let; and if, of tenant being out of the way, as is said in when he leases, he knows, or by the exercise Coren v. Sunderland, 145 Mass. 363. There is of reasonable care and diligence should know, an exception to the general rule of caveat that the premises are dangerous, it is his duty emptor, as between lessor and lessee, "arising to make them safe before be leases, or inform from the duty which the lessor owes the lessee. the tenant of their condition; and if he does not, This duty does not spring directly from the he must respond, to any person not in fault, contract, but from the relation of the parties, for damages caused by such condition of the and is imposed by law.” We quote from Wood premises, whether tenant or third person. Nor on Landlord and Tenant (p. 855): “Where does this holding imply, as counsel suggests, there are defects in the premises not open to that the tenant is thereby entirely relieved ordipary observation, of the existence of which from the duty of proper diligence on bis part, the landlord knows, or ought to know, which and that the landlord is virtually made guar- are dangerous to the person of the tenant, it is dian for the tenant. The obligation of the his duty to disclose them to the tenant, and if tenant to exercise proper diligence was prop be fails to do so, and the tenant is injured erly stated by the trial judge, and there is thereby, the landlord is responsible for all the noihing in the ruling of this court that can damages that ensue to the tenant therefrom.” legitimately bear the construction given to it Again (p. 869), the same author says: “But, by counsel to relieve the tenant of such care. when the premises, at the time when they are

The contention in the Stenberg Case is, leased are in so defective a condition as to be mainly, that, being a boarder, she was the per se a nuisance, especially when they are guest of the tenant, and not a third person in leased for a quasi-public use, the landlord is the eye of the law. It suffices to say, upon responsible for injuries resulting either to the this poiot, without noting other considerations, tenant or third persons lawfully upon the that the evidence shows that the bouse was let premises therefrom.” to be used as a boarding house, and recom. The rule laid down by this court, and (as we mended by the landlord for that purpose. If think) sustained by autbority and reason, is it was unsafe for that purpose, which is a that, in the absence of a contract to repair, or quasi-public purpose, and defendant knew it, warranty of condition, both the landlord and or could by reasonable care and diligence bave tenant must use reasonable care and diligence. known it, he should respond in damages to any If the tenant neglect such reasonable care and person injured on the premises. The boarder diligence to ascertain the condition of the is there as much by invitation of the landlord premises, or, knowing their condition, assumed as of the tenant. She is there, not strictly as the risk, then be cannot recover against the a guest, but as a third person, legitimately on landlord. On the other hand, if the landlord the premises on business, for the purpose for neglect to use reasonable care and diligence in which they were let. The rule is that, if the ascertaining whether his premises are safe, or landlord is guilty of delictum or negligence, be if he actually knows they are unsafe, and conis liable; otherwise, pot. And in this view of ceals or misrepresents their condition, then he the case, the tenant and his boarder stand upon is liable, the tenant being in no fault. It is the same footing, the contract being out of the not upon the ground of an insurer or warrantor way. The tenant may have more extensive of condition under bis lease contract, but on rights if she expressly contracts for safe prem. the ground of the obligation implied by law ises, and is assured of their safety; and, on the pot to expose the tenant or the public to danger other hand, her rights may be restricted if she wbich bekpows, or in good faith should know, is guilty of negligence in ascertaining for her- and which the tenant does not know, and canself the condition of the premises when she pot ascertain by the exercise of reasonable rented them, or took them knowing them to care and diligence. The cases are numerous be unsafe. The rule, as laid down by this which use the expression, laid down in the court, imposes reasonable care and good faith opinion in this case, that the landlord is liable, on both landlord and tenant, in the absence of not only for actual knowledge, but also for

care.

reasonable care and diligence in obtaining such the time the lessees entered into the possession knowledge,-not only when he knows, but of the storeroom does not appear.” As illuswhen he ought to know, of the defects, by trative of the application of the rule we bare using ordinary care and diligence. As using laid down, we cite the following, among otber this expression, we cite, among others, Martin cases, showing when the rule is applied, and v. Richards, 155 Mass. 381; State, Bashe, v. as to what persons held applicable: In Swords Boyce, 73 Md. 469; Carson v. Godley, 26 Pa. v. Edgar, 59 N. Y. 28, 17 Am. Rep. 295, 8 111, 67 Am. Dec. 404; Coke v. Gutkese, 80 Ky. ’longshoreman in the service of tbe tenant sued 598, 44 Am. Rep. 499. In the late case of the owner, and recovered. In Godley y. HagLindsey v. Leighton, 150 Mass. 288, it was held erty, 20 Pa. 387, 59 Am. Dec. 731, a servant that it was not necessary to show that the owner of the tenant sued the owner, and recovered. had actual knowledge of the defects. His duty In Carson v. Godiey, supra, a customer of the was that of due care, and ignorance of the tenant sued the owner, and recovered. In defect was no defense, in the absence of such Cesar v. Karutz, 60 N. Y. 229, the owner was

In Moynihan v. Allyn, 162 Mass. 272, held liable to the child of the tenant. In Coke it was held that it was the duty of the landlord v. Gutktse, supra, the owner was held liable to inform the tenant of any hidden defects, for injuries sustained by a child of the tenant. which could not be discovered by reasonable In Martin v. Richards, 155 Mass. 381, three diligence on his part, and of which the defend cases were tried together, and the owner was ant ought, for his proper protection, to be held liable for an injury to the child and wiie informed; citing quite a number of other Mas- of the tenant. In Minor v. Sharon, 112 Mass. sachusetts cases. Mr. Pingrey says, in § 592 477, three cases were tried together, and the of his work on Real Property: “Of course, if owner was held liable for injuries to the tenant's there is a concealed defect which renders the children. In State, Bashe, v. Boyce, 73 Md. premises dangerous, which the tenant cannot 469, the owner was held liable for injuries 10 discover by the exercise of reasonable diligence, the servant of the tenant. In Gill v. Middleton, of which the landlord bas or ought to have 105 Mass. 477, 7 Am. Rep. 548, the owner was knowledge, it is the landlord's duty to disclose held liable for an injury to the wife of the it, and he is liable for an injury which results tenant. In Nugent v. Boston, C. & M. R. Co. from bis concealment of it.” In $ 594 the same 80 Me. 62, the owner was held liable to persons author says: It is held that the obligation rightfully on the premises. In Nelson v. Lieand liability are the same to the tenant's guest erpool Brewing Co. L. R. 2 C. P. Div. 311, the and to his servants, "and the landlord is re- right of the servant of the tenant to sue was sponsible, unless it appears that such owner did recognized. In Moynihan v. Allyn, 162 Mass. not know, or by reasonable care and diligence 272, the right of the child of the tenant to sue could not have known, of the unsafe condition was recognized. And Mr. Pingrey, in his work of the premises when he leased them.” on Real Property, expressly states that there is

Under the principle we have attempted to lay no distinction in the rule as to the liability of down, the landlord's liability, leaving the con- the owner to the tenant or to the tenant's tract of lease out of view, is the same to the guest, or to the tenant's servant. In each in. tenant as to his servant, or his guest, or his stance be says the rule is the same. customer, or his wife or child, or to the stranger We see no reason or occasion for rebearing passing along the streets or on the premises for the causes upon further arguments or briefs. any legitimate purpose. The only case cited The petitioners make no new grounds of deby counsel apparently holding a doctrine con- fepse, and lay dowo no principles that have not trary to that laid down by this

court is that of already been fully argued by counsel for de Burdick v. Cheadle, 26 Ohio St. 393, 20 Am. fendant, and still more fully investigated and Rep. 767. This case is also reported in 50 Am. considered by the court. It could serve no Dec. 782, and referred to as a peculiar case, useful purpose to bave further argument along and, as we think, very justly criticised, as lines that the court does not consider conclusive placing the party injured in a very anomalous or material in the case. The court is satisfied position. The case is clearly out of line with with its conclusions, and has no doubt of The current of authority. It may be remarked, their correctness when properly understood however, that in that case the court said: and applied. “Whether the noxious structures existed at The petition to rehear is denied, and dismissed, 34 L. R. A.

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