Opinion
35532.
DECIDED MARCH 9, 1955. REHEARING DENIED MARCH 18, 1955.
Action for damages. Before Judge Hendrix. Fulton Superior Court. November 8, 1954.
J. E. B. Stewart, for plaintiff in error.
Marvin G. Russell, Turner Paschal, contra.
"Code § 61-111 provides as follows: `The landlord must keep the premises in repair, and shall be liable for all substantial improvements placed upon them by his consent.' Where the landlord has fully parted with possession and right of possession, he must have reasonable notice of the defective condition of the premises as a condition of liability therefor. Davis v. Hall, 21 Ga. App. 265, 268 ( 94 S.E. 274); Ocean Steamship Co. v. Hamilton, 112 Ga. 901 ( 38 S.E. 204); Ledbetter v. Gibbs, 19 Ga. App. 485 ( 91 S.E. 875). Notice of a defect given by the tenant to the landlord charges the latter with notice of any and all other defects such as might reasonably have been discovered by a compliance with a request for repairs. Stack v. Harris, 111 Ga. 149 ( 36 S.E. 615)." Shattles v. Blanchard, 87 Ga. App. 15, 16 ( 73 S.E.2d 112). "The only duty of care resting on the tenant is to refrain from using those portions of the premises which are patently defective or dangerous; but when the landlord is notified that the premises are out of repair, it becomes his duty to inspect the premises and to make such repairs as the safety of his tenants requires. Gledhill v. Harvey, 55 Ga. App. 322 ( 190 S.E. 61)." Ween v. Saul, 88 Ga. App. 299, 302 ( 76 S.E.2d 525). See also, in this connection, Harris v. Riser, 30 Ga. App. 765, 769 ( 119 S.E. 432); Mathis v. Gazan, 51 Ga. App. 805 ( 181 S.E. 503), where it is held that it is a question for the jury whether a reasonable inspection of the premises in connection with the repair of the patent defect of which the landlord had notice would have revealed to the landlord the defective condition which resulted in the tenant's injuries. And, where, under an application of the foregoing rules of law, it appears from a petition that a tenant notified his landlord on numerous occasions that a stairway on the premises which he rented from the landlord was unsafe for use by virtue of the fact that the bottom step has rotted away, that the next to the bottom step has partially rotted away or split off, and that there is no handrail on the stairway, the landlord is chargeable with notice of all other defects in the stairway which a reasonable inspection in connection with the repair of the alleged defects would have revealed; and where it is further alleged that, unknown to the tenant, the step second from the top had rotted away on the underside, and that, when he stepped upon that step, a portion of the step broke off, causing him to lose his balance and to fall down the steps to the ground, as there was no handrail on the stairway, and causing him injuries from which he died — it was a question for the jury whether or not the defendant landlord could by a reasonable inspection have discovered the defective step, second from the top, in connection with his duty of repair of the other defects in the stairway of which he had been notified; and the question of proximate cause also being for the jury, the trial court erred in sustaining a general demurrer to the petition. It does not appear that the tenant was injured by use of that portion of the stairway by virtue of which the plaintiff says the stairway was unsafe, and we cannot say as a matter of law, even when the petition is construed most strongly against the plaintiff, that the tenant was not in the exercise of ordinary care for his own safety in using that portion of the stairway from which he fell, as it does not appear by allegation or inference that such portion was patently dangerous for use.
Judgment reversed. Gardner, P. J., and Townsend, J., concur.
DECIDED MARCH 9, 1955 — REHEARING DENIED MARCH 18, 1955.
Mrs. Edith Ball brought an action for damages against George P. Murray, Sr., for the death of her husband. The allegations of her petition material to a decision in this case are substantially as follows: The plaintiff's husband, William E. Ball, died August 14, 1952, of injuries sustained on August 8, 1952. On August 8, 1952, Mr. Ball was the tenant of the defendant, and rented premises from him in the City of Atlanta, which were ordinarily used for business purposes and known as 815 Bankhead Avenue. The building which Mr. Ball rented from the defendant faced on Bankhead Avenue and had two entrances, one on the front and one on the rear. Entry to the rear of the building was by way of a stairway of approximately twelve steps, leading from the ground to the rear entrance of the building. These steps were approximately three feet long and ten inches wide. The stairway was "in bad condition for the reason that [the] defendant had failed and refused to repair or maintain said stairway so as to make it safe for use." The defendant owed the plaintiff's husband, Mr. Ball, as his tenant, the duty of keeping the stairway in a reasonable state of repair; and even though the plaintiff and her husband had on numerous occasions requested the defendant to repair and maintain the stairway, he had failed and refused to do so. The stairway was in bad repair in the following particulars: (a) the bottom step of the stairway was entirely missing; (b) the step next to the bottom step was partially missing, in that about half of it was split off or rotted away; (c) the step second from the top of the stairway was in a rotten and decayed condition on the underside, which was unknown to the plaintiff and her husband at the time of his injury; and (d) there was no handrail on the stairway. The plaintiff's husband owned and operated a laundry in the premises, and, on the day on which he was injured, had occasion to leave the building by the rear entrance to go to a small building on the premises in which his steam boiler was located. As he descended the stairway, he stepped on the second step from the top, and a portion of that step, approximately three inches from the outer edge, broke off and caused him to lose his balance. That step appeared to be in sound condition, but was rotten on the underside, and the plaintiff's husband did not know, and could not reasonably have known, of that condition of that step. As Mr. Ball was about to fall, his right hand impulsively grabbed in the direction of where a handrail should have been, and because no handrail was affixed to the stairway, he fell the entire distance down the stairway to the ground, a distance of approximately eight feet. As a result of his fall, Mr. Ball suffered enumerated injuries and from those injuries died. The proximate cause of his death was the negligence of the defendant in failing to repair the stairway as aforesaid.
The trial court sustained a general demurrer to the petition, and the plaintiff has brought the present writ of error to have that judgment reviewed.