The general rule of law is, that the occupant, and not the owner, as such, is responsible for injuries received in consequence of a failure to keep the premises in repair. To this general rule the authorities' recognize these exceptions : 1. Where the landlord has, by an express agreement between the tenant and himself,' agreed to keep the premises in repair, so that, in case of a recovery against the tenant, he would have his remedy over against the landlord. There, to avoid circuity of action, the party injured by the defect and want of repair may have his action in the first instance against the landlord. 2. Where the premises are let with a nuisance upon them, by means of which the injury complained of is received. Gridley v. City of Bloomington, 68 Ill. 47; City of Chicago, v. O’Brennan, 65 Id. 160; 1 Thompson on Neg. 317, and cases cited in notes.
It is not pretended that this case comes within the first of these exceptions. There was no agreement by the landlord to repair, but, on the contrary, the tenant expressly agreed to keep the premises in repair at his own expense. It follows that unless the plaintiff has succeeded in showing that, at the date of the lease, the defect in the railing by means of which he received his injury Was in existence, the judgment in hi favor can not be sustained.
It can not be disputed that, at the time the plaintiff was injured, the railing, at the place where it was nailed to the building, had become loosened and detached, and that it was then insufficient to protect persons who might chance to lean against it from falling into the area. But its want of repair at that date did not render the defendant liable, unless it appears that it was defective and insufficient at the date of the lease, and the burden of proving that fact was on the plaintiff. At the date of the injury the tenant had been in possession thirty-seven days. Mrs. Tally testifies that about two or three weeks prior to that date, she discovered that the railing had sprung apart at the corner where it was mitered, so that she could lay her finger in the joint, and that she pressed it together, but did nothing more by way of repairing it. She further • testifies that the railing was fastened to the building by only three small nails driven into the siding. The plaintiff also testifies that some four or five weeks after the accident, he examined the railing and found that it was “ nailed to the side of the house with two little bits of nails in it-—the same as these soap-box nails.” This was, in substance, all the plaintiff’s evidence, tending to show the condition of the railing at the date of the lease.
The defendant on the other hand, produced as witnesses two carpenters, who testified that they put up the railing in October or November, 1880, and that it was put up in a substantial manner; that it was put up for a hand-rail, and not as a seat for persons to sit upon; that it was fastened to the building by at least two spikes or twenty-penny nails, driven into the studding, and also one or more ten-penny nails. The former tenant, who was in possession at the time the railing was put up, testifies that it was well and substantially put up, and that when he left, which was May 4, 1881, it was not at all loosened. The occupant of an adjoining tenement testifies to being very familiar with the railing; that it was apparently in good condition, and that he had heard or observed nothing to the contrary prior to the plaintiff’s injury. The defendant’s president, and also its agent, who had general oversight of said building, and who executed the lease to Tally, both testify to about the same facts.
In view of the foregoing testimony, another fact appearing in evidence, and about which there seems to be no conflict, possesses no little significance, and that is, that prior to the accident and after the lease to Tally, various persons were in the habit of using the railing in question as a seat. This fact tends strongly to corroborate the evidence of the defendant’s witness as to the manner in which the railing was originally constructed, as well as its condition, down to a period subsequent to the demise to Tally, and also furnishes a reasonable hypothesis upon which its giving way at the time the plaintiff was injured, may be accounted for.
In view of all the facts appearing in the record, we think the preponderance of the evidence as to the condition of the railing at the date of the lease, is clearly against the plaintiff, and for that reason the judgment must be reversed and the cause remanded for a new trial.
Judgment reversed.