There appears to be no controversy as to the law in regard to the liability of a landlord to the guests of his tenants in relation to common hallways and stairways. He is liable for negligence and is not an insurer of the safety of his premises. If he knows of a defect from which injury to someone may reasonably be anticipated and some injury proximately occurs, he is liable. If the *Page 87 defect exists for such a length of time that a reasonably prudent landlord would have discovered and remedied it before the injury occurred, then he is charged with constructive notice of the defect. If the defect is of the type that results from a natural tendency to decay or from normal use, then that tendency must be taken into consideration in determining whether the landlord has been reasonably diligent in discovering and remedying the defect.
The majority endeavor to apply to the case at bar the theory of deterioration from decay or normal use. As I view the record, the facts do not justify the submission of the case to the jury on that or any other theory. There is no evidence of actual knowledge of the defect, nor is there evidence that it had existed for any length of time whatever. The problem presented is whether the defect complained of was of such a character as to bring into consideration the application of the rule with reference to deterioration from decay and normal use.
The brass edging was of a type in common use and apparently properly put down, because the plaintiffs' own witness who inspected it after the accident testified that the screws and nails which held it down were firm. There was no deterioration in the devices used to fasten it down. The majority assert that normal wear and use had a tendency to cause the edging to bend up at the edge, and they say that inference is justified by the fact that some three years before the accident defendant had nailed down the other end, but he was not asked why he did so. A bent-up edge is obviously the result of some heavy object, such as a piece of furniture, striking the edge of the edging. The photographs show plainly that the nose of the edging on the side next to the railing where defendant had put in the nails had been jammed in. It seems a natural inference that this violence to the front of the edging may have caused the defect which gave occasion to nail down that end. However that may be, there is no evidence of such an injury to the end where Mrs. Anderson fell. Likewise, there is no evidence in the record that bending up is caused by normal use or wear so long as the screws and nails are tight. Except for *Page 88 the three corrugations running lengthways near the nose, the edging is smooth on its upper surface and apparently was so when it was installed. There is not a syllable in the record that even remotely hints that normal wear has a tendency to bend up the edge of the edging. From this the conclusion seems to be irresistible that ordinary wear or decay had no place in the chain of causation leading to Mrs. Anderson's injury. What meager evidence there is in the case is consistent with the theory that the bending up was caused by violent contact with some heavy object. There is none whatever that it was due to loose screws or to decay as in the cases cited by the majority. If that be so, then there was nothing to charge defendant with notice of the defect.
In the Dickey case, 157 Md. 448, 146 A. 282, quoted from at great length by the majority, the screws fastening the edging to the step had become loose, one of them having come out altogether. In the eyes of the appellate court the evidence justified a finding that the edging had either never been properly fastened down or that its construction was defective and that defendant had failed to make a careful inspection. Hence the case is not in point. No such evidence appears here, and the stairway was inspected three times a week by defendant's employe who swept the hall and stairway and scrubbed it on Sundays. He testified that he saw no defect. The Swanson case, 302 Ill. App. 455, 24 N.E.2d 62, also involved a loose edging. The distinction is too obvious to require further comment.
The only case involving a bent-up edging which has been called to our attention or which we have discovered is Doran v. United States B. L. Assn. 94 Mont. 73, 77, 20 P.2d 835, where the court held that there was insufficient evidence to establish the fact that the defect had existed long enough to charge defendant with notice. There the plaintiff had a stronger case than have these plaintiffs.
The Schnatterer case, 81 N.J.L. 558, 79 A. 324,34 L.R.A.(N.S.) 1077, involved a loose edging and may be criticized for that reason, though the court took the position that the inference was *Page 89 justified that the looseness was caused by the accident complained of.
In my view of the case, the order denying the motions for a new trial should be reversed.
MR. JUSTICE STONE took no part in the consideration or decision of this case.