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KELLY v. HORN ET AL. (07/13/53)

July 13, 1953

KELLY
v.
HORN ET AL.



COUNSEL

Ernest R. White, Philadelphia, Richter, Lord & Farage, Philadelphia, for appellant.

Lynn L. Detweiler and Swartz, Campbell & Henry, Philadelphia, for appellees.

Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross, Gunther, and Wright, JJ.

Author: Dithrich

[ 173 Pa. Super. Page 604]

DITHRICH, Judge.

This is an action in trespass. Plaintiff was injured September 28, 1948, when one of two cellar doors forming part of the public sidewalk abutting on premises owned by defendant Beatrice Horn, a resident of New York, and leased April 23, 1946, to defendant Jack Weinstein,*fn1 collapsed under him. A jury returned a verdict for plaintiff against both defendants in the amount of $800, but the court below entered judgment n.o.v. for the defendant-owner, holding that 'There was no reliable evidence * * * that the cellar doors were defective at the time of the leasing of the premises, or that the owner defendant had knowledge or notice that a defective condition existed.' Plaintiff appeals from the entry of judgment n.o.v. for the owner.

The premises, leased entirely to tenant-appellee, consisted of a building with a small store on the first floor, living quarters on the second floor, and a cellar or basement. Two steel doors, each two feet by three and one-half feet, were set side by side into and flush with the concrete sidewalk in front of the building, covering

[ 173 Pa. Super. Page 605]

    a stairway extending from the sidewalk downward into the basement of the building. The doors opened upward and outward, each swinging on two steel strap hinges, about three-eighths of an inch thick, one and one-half inches wide, and ten inches long, by which the doors were joined to a door frame made of two-inch angle iron. The doors collapsed as a result of the condition of the hinges which had been weakened by rust.

In Ford v. City of Philadelphia, 148 Pa. Super. 195, 199, 24 A.2d 746, 748, this Court said, in an opinion by Rhodes, J., now P. J.: 'It is generally recognized that a tenant is primarily liable if a sidewalk becomes defective while in the occupancy and control of the tenant resulting in injury to a third person, but that the landlord is liable for defects which exist at the time of executing the lease. McLaughlin v. Kelly, 230 Pa. 251, 256, 79 A. 552, 50 L.R.A.,N.S., 305; Briggs v. [City of] Philadelphia, 316 Pa. 48, 51, 173 A. 316.' (Emphasis added.) And 148 Pa. Super. at page 201, 24 A.2d at page 749: 'It is the general rule that a tenant in possession always is, and the landlord may be, liable for injury to a third person arising from negligence.'

Appellant contends that 'There was evidence upon which the jury could find that the door hinges were defective and dangerous at the time the premises were leased to the tenant.' In addition to testimony that there had been no repairs made to the doors for sixteen years prior to the accident, he relies on testimony given by a witness now engaged in cement contracting, plastering, and carpentry, who, in the past, had seven years' experience working around metal, during which time he had opportunity to observe the effects of rust. The witness testified that he examined the doors shortly after the accident and found that rust had 'rotted out' all the hinges and that three of the four hinges had rusted through completely. He explained that the rust was a consequence of the fact that it tool two or three

[ 173 Pa. Super. Page 606]

    days following a rain for any dampness on the hinges to dry -- they being located on the undersides of the doors. Over objection, he testified that from his observation at the time of the examination the hinges had been rusting ...


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