Appeal, No. 7, Feb. T., 1960, from judgment of Court of Common Pleas of Monroe County, May T., 1957, No. 39, in case of Ray Keiper v. Paul Marquart. Judgment affirmed.
John J. Pentz, Jr., with him Leo A. Achterman, for appellant.
Harry P. O'Neill, Jr., with him J. Joseph McCluskey, and Frank M. Walsh, for appellee.
Before Rhodes, P.j., Wright, Woodside, Ervin, Watkins, and Montgomery, JJ. (gunther, J., absent).
[ 192 Pa. Super. Page 89]
We are here concerned with a trespass action by a tenant against his landlord arising out of an injury sustained by the tenant on August 7, 1956. The case was tried on February 11, 12, and 13, 1958. At the conclusion of plaintiff's evidence, defendant's motion for a compulsory non-suit was overruled. Defendant also presented a point for binding instructions which was refused. The jury returned a verdict in favor of the plaintiff in amount of $4,000.00. Defendant thereupon filed motions for new trial and judgment n.o.v. The court below subsequently sustained the latter motion and directed entry of judgment in favor of the defendant. The plaintiff has appealed. Viewed in the light most favorable to the verdict winner, Farmers' Northern Market Co. v. Gallagher, 392 Pa. 221, 139 A.2d 908, the evidence discloses a factual situation which is summarized in the following excerpt from the opinion of the court below:
"The defendant, the owner of a six room dwelling house, leased the same to the plaintiff by oral lease on a month to month tenancy at a monthly rental of twenty-five dollars in advance, and the plaintiff started to
[ 192 Pa. Super. Page 90]
live in the house on June 1, 1956. When the plaintiff moved in, the general condition of the premises was good. Approximately three weeks after the plaintiff moved into the premises, a wet spot appeared on the dirt cellar floor. This wet spot was caused by water flowing out from the joint on the drain pipe which led from the kitchen sink down through the floor, across the ceiling of the cellar and then down into a drain in the corner of the cellar. The leaking was caused by a combination of this drain pipe clogging and the joint in the pipe below the kitchen sink having a faulty connection. Approximately two-thirds of the drain pipe was clogged when it was taken apart by the plumber who repaired the drain shortly after the accident. When the drain would clog, the plaintiff would put Draino into the pipe to open it up, and then it would work properly for at least a week or two thereafter. After the pipe leaked the first time, the plaintiff and defendant went down to the cellar and looked at the pipe and the wet condition of the floor. The defendant agreed that he would have the pipe fixed. In another week or two the drain clogged again and the water leaked out on the cellar floor. In the latter part of July the plaintiff told the defendant that 'if you don't get it fixed then, I am going to move out'. The defendant then said, 'No, don't move out, we will get it fixed'. The defendant did not have the drain pipe fixed or make any repairs to it and on August 7, 1956, when the plaintiff was walking across the cellar to repair the water pump, he slipped on the wet spot on the cellar floor caused by the leaking pipe and received the injury to his hand by thrusting it through the cellar window nearby".
President Judge DAVIS took the position that there was no negligence on the landlord's part for the reason that he did not retain control of the premises; and also that appellant was guilty of contributory negligence
[ 192 Pa. Super. Page 91]
as a matter of law. Appellant contends on this appeal (1) that the landlord "reserved sufficient control and possession of the premises to make him liable in tort to the plaintiff"; and (2) that the question of contributory negligence was a matter for determination by the ...