Fry v. Brubaker , 77 Pa. Super. 438 ( 1921 )

Opinion by

Linn, J.,

Appellant presents two assignments: the first to the refusal of binding instructions; the second to the refusal of judgment n. o. v. The questions of negligence and contributory negligence arising on the evidence were submitted to the jury in a charge of which no complaint is made. The verdict determines that plaintiff’s injury was caused by defendant’s breach of duty, and as there is evidence to support the verdict, we may not interfere. Our question is whether the law permits recovery.

Defendant’s premises in Pittsburgh were used as a tenement house within the provisions of the Act of March 25, 1903, P. L. 54. Section 1 defines a tenement house as “any house or building or portion thereof, which is: (a) intended or designated to be occupied, or (b) leased for occupation, or (c) actually occupied, as a home or residence for three or more families, living in separate apartments, and doing their cooking upon the premises.” Section 9 provides: “Every tenement house, and every part thereof, shall be kept in good repair, and shall be clean and free from any accumulations of dirt, filth or garbage, or other matter, in or on the same, or in the yards, courts, passages, areas or alleys connected with or belonging to the same.” Section 13 provides: “The Bureau of Health of such cities shall employ one or more special tenement-house inspectors, whose duty it shall be to regularly inspect the tenement houses within the purview of this act, and to see that the requirements therefor are enforced.” Plaintiff was such inspector. Complaint was made to the bureau that defendant’s tenement house was unsanitary and plaintiff was directed to make the necessary inspection. That required him to go into the cellar. He started down by the stairway provided for the purpose, and* while descending, the steps gave way and dropped him to the bottom. He sued to recover for the injury so sustained. There was abundant evidence not only to justify the jury in finding the stairway was rotten and wholly out of repair, but that defendant’s committee had ample notice of it sufficiently prior to the injury to have made the necessary repairs. We therefore have a breach of duty imposed by the statute regulating the manner in which defendant might use her premises as a tenement house, with resulting injury to the inspector who was required by the law to enter the premises- so used. He was among the parties for whom the statute required that the “tenement house and every part thereof shall be kept in good repair......”

Appellant says the judgment should not be sustained because “A property owner can only be liable for some act of negligence or failure to perform some duty which she would owe to the plaintiff as licensee, and......in this case she owed no duty to plaintiff......The owner of premises can only be liable to tbe-licensee for active negligence, as to him mere passive negligence is not sufficient to give a cause of action, and in this case plaintiff bad only tbe right to enter tbe defendant’s property for tbe purpose of bis inspection as a public officer, and tbe character of bis entry was that of a licensee only......”

Tbe contention is inapplicable; it disregards tbe positive provisions of tbe statute in tbe circumstances disclosed by tbis record. Nor does tbis record require us to consider tbe different and changing views reported in cases growing out of entry upon lands of another; they have recently been set forth in 69 U. P. L. R. 142, 237 and 340; see also R. C. L. sections 51 to 61. We are dealing with a statutory duty imposed in tbe exercise of tbe police power upon a tenement-house owner, with nonperformance of that duty, and with resulting injury; such breaches of duty create liability: Drake v. Fenton, 237 Pa. 8, and cases cited page 11; see also Beach v. Hyman, 254 Pa. 131, 134 to 136.

Tbe judgment is affirmed.