
    Sarah O’Dwyer, Respondent, v. Thomas J. O’Brien, Appellant.
    
      Landlord and tenant — injury, in daylight, on a walk known to be defective—plank walk interfered with by landlord and made defective during the tenancy.
    
    The owner of a tenement leased to one O’Dwyer the rear portion thereof, to which access was had through an alleyway about four feet wide, used only by O’Dwyer, and having a gate opening upon the street and a plank walk through it, in which one of the boards had been left sticking up two or three inches from the ground upon the conclusion of some repairs made by the owner during the existence of the tenancy. While entering the gate, upon a clear morning, O’Dwyer’s wife, who was carrying a large basketful of clothes in front of her and was looking across the street, tripped over the loose board and fell, sustaining injuries because of which an action was subsequently brought by her against the owner of the property. Prior to this accident several members of the plaintiff’s family had tripped over the same board, and the plaintiff was, at the time, fully aware of its condition.
    
      Held, that the plaintiff was guilty of contributory negligence;
    That the rule that a landlord must see that portions of property used in common by several tenants are kept in good repair did not apply to the case.
    
      Semble, that, had'the plaintiff not been guilty of contributory negligence, the owner of the premises, having interfered with the walk during the tenancy, and left it in a defective condition, would have been liable.
    Appeal by the defendant, Thomas J. O’Brien, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 21st day of February, 1896, upon the verdict of a jury for $650, and also from an order entered in said clerk’s office on the 21st day 'of February, 1896, denying the defendant’s motion for a new trial made upon the minutes.
    
      Kenefick & Love, for the appellant.
    
      George W. Cothran, for the respondent.
   Ward, J.:

The defendant owned a’ tenement house on the south side of Seneca street, in the city of Buffalo. It was occupied by two tenants. The rear portion, some two years before the accident hereafter referred to, was leased by the, defendant to the plaintiff’s husband; the front portion was occupied by another tenant. The Only means of access to the rear portion of the house from the street, that was used in connection with t£iat portion, was an alleyway, about four feet wide, extending from the street back about fifty feet to the entrance of the husband’s premises. At the street there was a gate or gateway entering this alley about three feet wide. From this gate to the entrance to the husband’s premises there were two planks, which seemed to have afforded a safe walk. The plaintiff’s evidence tended to show that, during the time she had resided there, there was, in addition-to the two planks, a third plank between the two planks an^-. the building shorter than the others, and not fastened down. /Íliís third plank extended to the gateway, and at the end nextdo the gate, at the time of the accident, stuck up above the/ground from two to three inches. In February, 1894, this plank walk was taken up by defendant’s direction to repair a sespgr thereunder; the two planks were restored to their original^findition, and the plaintiff claims that the loose plank next to the/house was left in the condition hereinbefore described. Betweeiythat time and the ninth of Hay following several members of theyplaintiff’s family had tripped up over the'end of this loose planlj/ at the gate, and it is quite clear from the evidence that the plaintiff was aware of the condition of this plank and fully understood the situation of the walk at the time of her injury.

Her counsel upon this appeal seems to concede as much m nis points.

On the morning of the 9th of Hay, 1894 — a bright, clear morning— the plaintiff had passed out through this alley to obtain a basketful of clothes from a place outside, and soon returning with a large washbasket full of clothes, about three feet wide and four feet long, carrying the basket in front of her, she, without looking ahead of her, was passing through the gateway. The plaintiff testifies : “ I carried the basket of clothes in front of me; it was a large washbasket; the basket was about three feet wide, and was four feet "long; it was an ordinary clothes basket; the plank which stuck up was inside the gate; I "just stepped inside the gate, and this board took my foot and threw me forward. Q. How did you get in the gate with the clothes basket % A. I went in kind of sideways ; I was looking across the street, and I was looking kind of sideways, and this board took me and threw me forward. Q. What were you looking across the street for ? A. Because I heard a lady hollering across the street, and I looked across to see what she was hollering for; I saw a lady at the window; I could not swear who it was.” ' -

When the plaintiff. rested, the counsel for the defendant moved for a nonsuit upon the grounds: First, that the plaintiff had hot shown herself free fr'Qin contributory negligence, and, second, that the defendant owed nóxdnty to the plaintiff as to that portion of the walk inside of the gate;- x The motion was denied and the defendant gave proof, and upon the close of the whole evidence the motion was renewed upon the same grounds, and,-being again denied, was excepted to. . X

The counsel for the defendant askeckthe court to charge the jury that if the walk and the alley, under the Xsidence of the case, were occupied and used only by the plaintiff .and B@r family, as tenants ■of the defendant, and by.no other tenant of .the pi^anises, then the plaintiff could not recover, which was refused; and they1defendant’s' counsel excepted.

The plaintiff utterly, failed in establishing her freedom fppm contributory negligence.

From the above statement of facts it will be seen that the\evidence' tends strongly to show that she was negligence as a matter of law. guilty of contribuid!

Knowing, as she did, the condition of this plank, which created an obstruction at the gateway, she should have paid some attention to where she was going, as her vision, in a manner, was obstructed, and her locomotion interfered with in carrying the burden in front of her, but, instead of doing so, she was looking across the street while proceeding on her journey. The nonsuit should have been granted for that reason. (Stephenson v. Equitable Gas Light Co., 14 N. Y. Supp. 67, and cases there cited.)

The appellant invokes the rule that the lessor of a building, in the absence of fraud or any agreement to that effect, is not liable to the tenant or others lawfully upon the premises by his authority, for their condition, or that they are tenantable and may be safely and. conveniently used for the purpose for which they were apparently intended. (Jaffe v. Harteau, 56 N. Y. 401, and cases there cited.)

The evidence does not disclose any specific agreement between the defendant and the lessee of the rear portion of the premises that the alleyway should be routed to or exclusively used by this lessee, but it does appear, and without contradiction, that, as a matter of fact, the alleyway was only used by this lessee, and not by the tenant occupying the front portion of the premises, or necessary to be used by such tenant in the enjoyment of the property occupied by him. It also appeal’s that this alleyway was the only means of communication between the premises let to the plaintiff’s husband and the street. It is fair to assume, from the situation of the premises and the circumstances attending the occupancy, that the alleyway was leased as a part of the premises occupied by the plaintiff’s husband and herself, or was appurtenant to the same.

The respondent’s counsel contends that this case comes within the rule that where a landlord leases different parts or apartments in a building to several tenants, each tenant occupying only a portion of the house, it is the landlord’s duty to see that the ■ means by which each tenant can go to and from the portion of the premises occupied by them is kept in reasonable condition of safety and repair. (Citing Peil v. Reinhart, 127 N. Y. 381, and kindred cases.)

It is difficult to see how this rule has any application here. It applies only to passages, stairways or alleys' used in common by the different tenants of one building.

In the case at bar the alleyway was only used by one tenant, and was'a part only of one tenancy, and, therefore, the same rule would be applied as if the plaintiff’s husband were the sole tenant of the building.

Had the defendant permitted the alleyway to remain in the same condition as when it was first rented to the tenant, then the contention of the defendant in this respect could be sustained. But it appears that the defendant, for purposes of his own, during the existence of the tenancy, interfered with this alleyway, dug it up, and there was ¿vidence tending to show (which made it a question for the jury) that he did not leave the alleyway in as good condition for use as when the premises were rented ; so the question arises, if there were negligence on the part of this defendant in interfering with this alleyway, and, as a result of that negligence the plaintiff was injured, whether she would not have an action therefor. It would seem upon principle that she would, if she was free from contributory negligence, and, this being so, we must sustain the trial court in its refusal to charge as . requested hy the defendant’s counsel, as the granting of that request would have defeated the plaintiff without permitting her to go to the jury in the aspect of the case we have just considered. It is proper here to say, in view of another trial, that the learned trial judge, in his charge, seemed to convey the impression, in one branch thereof, at least, that the rule as to tenants using alleyways or passages in common might be applicable to this case. This was error. We think that, upon this branch of the case, no liability can attach.to the defendant, except as a result of his interference with the alley after the tenancy had commenced.

The. judgment should be reversed and a new trial should be granted, with costs to abide event.

All concurred.

judgment and order reversed and a new trial ordered, with costs to abide the event.  