Opinion
Decided June 29, 1933.
A landlord owes to his tenants a duty of protection against dangers inherent in the type of construction of those portions of the premises which he furnishes for their common use but retains within his own control. Certain evidence warranted the conclusions that the iron railing of a stairway was not so constructed as to afford adequate protection to children, and that a piazza roof the drippings from which formed ice upon the stairway was negligently constructed.
TWO ACTIONS OF CASE, for negligence, tried together by jury with verdicts for both plaintiffs. In the second action the plaintiff, Rita, seeks to recover damages for personal injuries sustained by her as the result of a fall from an outside stairway upon the premises of the defendants. In the first action her father seeks to recover for the expenses incurred by him as the result of her injuries. Transferred by Woodbury, J., upon the defendants' exceptions to the denial of their motions for directed verdicts.
No testimony was introduced by the defendants, but the evidence of the plaintiffs tended to prove the following facts. The plaintiff, Arthur, was, upon the date of the accident, November 28, 1930, a tenant of the defendants, occupying with his family a tenement on the second floor of a three story wooden block in Nashua in which there were three other tenants. From a yard in the rear of the building rose an outside stairway which gave access to the tenements on the second and third floors and which was used in common by all tenants. This stairway led from the ground to a piazza upon the level of the second floor from which there was an entrance to the hallway separating the two tenements on that floor. On the outer side of this stairway was a railing consisting of a single galvanized iron pipe carried upon three upright supports and attached at its upper end to a post of the piazza. The height of the railing above the stair treads was twenty-nine inches. The piazza roof was so constructed that drippings therefrom fell upon the two top steps of the stairway leading to the ground. There had been no change in the construction of the railing or the piazza roof since the tenancy commenced.
Upon the day of the accident there was an accumulation of ice caused by drippings from the eaves of the piazza roof on the two top stairs, and the plaintiff, Rita, then a child six years of age, while ascending the stairway, slipped upon this ice, slid under the iron railing and fell to the ground below.
Albert Terrien, for the plaintiff.
Sewall Waldron and Oscar Neukom, for the defendants.
The defendants contend that a landlord owes to his tenants no duty of protection against dangers inherent in the "type of construction" of those portions of his premises which he furnishes for their common use but retains within his own control, and cite certain cases from Massachusetts and Maine in support of their position. Such is not the law in this jurisdiction. "In so far as the approaches to the premises are concerned, it is his [the landlord's] duty to do whatever the ordinary man would do to enable them [his tenants] to enter and leave the premises in safety." Young, J., in Kambour v. Railroad, 77 N.H. 33, 46; Gobrecht v. Beckwith, 82 N.H. 415, 418. Cases illustrative of this principle are Saad v. Papageorge, 82 N.H. 294; Burelle v. Pienkofski, 84 N.H. 200; Thompson v. Resnik, 85 N.H. 413; Rowe v. Company, ante, 127. In Gobrecht v. Beckwith, supra, the defendant was specifically held liable for a defective type of construction, and structural defects were in part made the basis of liability in Thompson v. Resnik, supra and Rowe v. Company, supra.
In regard to the plaintiff's claim that the iron railing was defective and insufficient, the case of Saad v. Papageorge, supra, is decisive. "The construction of the stairway was such that its use by very young children as a stairway might be found to be contemplated, and so some protection for use for that purpose would be required. The duty of care may therefore be found to be owing. . . ." Ib., 296.
In regard to the plaintiff's claim of negligence in the construction of the piazza roof, this case is governed by the decision in Thompson v. Resnik, supra.
Judgments on the verdicts.
WOODBURY, J., did not sit: the others concurred.