Appeal, No. 80, Jan. T., 1962, from judgment of Court of Common Pleas of Delaware County, Dec. T., 1957, No. 437, in case of W. Robert Bryans v. James P. Gallagher and Bridget Gallagher. Judgment affirmed.
C. Norwood Wherry, with him Albert E. Holl, Jr., for appellant.
Robert F. Jackson, with him Robert W. Beatty, for appellees.
Before Bell, C.j., Musmanno, Jones, Cohen, Eagen and O'brien, JJ.
OPINION BY MR. JUSTICE O'BRIEN
This is an appeal from the judgment which was entered on verdicts for defendants after the court below refused the grant of a new trial. The trial court directed verdicts in favor of the defendants.
The matter presented for determination is a provision in a lease wherein the appellant, W. Robert Bryans is the lessee and the appellees are the lessors. The clause is as follows: "The tenant hereby releases the landlord from all responsibility, and expressly assumes all liability, in any action for damages which may arise from any kind of injury, to anyone, by and on account
of the use, or misuse, of the demised premises, or by and on account of any physical condition whatsoever that may at any time exist upon the premises, or the sidewalk adjacent thereto, during the term of this lease. Provided, however, that in respect to the condition of the premises or sidewalk adjacent thereto, this clause shall not apply in any case where the Landlord shall have received written notice from Tenant of any defect in said premises or the sidewalk adjacent thereto, within a reasonable time after the Tenant has knowledge thereof. Provided, further, that nothing in this clause shall be construed to relieve the Tenant from taking all necessary measures, during the interval between the Tenant's knowledge of the defect and the Landlord's repair thereof, to protect the public and others from injury by reason of such defect."
We are presented with the legal question of the effect of the foregoing paragraph. The verdict was directed for defendants by the trial judge, based solely on the exculpatory effect of the paragraph and the matter of negligence of defendants and contributory negligence of the plaintiff was not considered and did not enter into the judge's action.
The essential facts are that the parties entered into a written lease and the plaintiff became a tenant of the defendants on September 1, 1957. The leased premises was an apartment in a building that had been previously a single dwelling but had been converted into an apartment building. The former single dwelling was converted into five apartments, one of which the plaintiff leased. The premises are located on West Chester Pike, Delaware County. The apartment building is located about 75 yards from West Chester Pike and has a macadam or black top driveway, which driveway is the only ...