Johnson v. Collins

Atkinson, Justice.

The official report states the facts.

1. It will be observed that the plaintiff alleges in her declaration, that although the steps were out of repair and she had known this for some time, she had no reason to suppose their use would be dangerous, but did suppose that the props which she and her son had used would be sufficient. The negligence of the landlord was alleged, and the tenant rests her case upon the theory that though she was advised that the premises were in need of repair, and that although she knew they were out of repair, she did not know their use would be dangerous. The question as to whether or not she was in the exercise of ordinary care in the use of the steps, was a question of fact to be passed upon by a jury; and to convict her of negligence, it was necessary to appear, not only that the steps, which were the cause of her injury, were defective, but that she likewise [knew of the danger. If they were out of repair, but not so obviously so as that a person of ordinary prudence must have known they were dangerous, then she was entitled to go to the jury upon the question as to whether there was .an apparent danger in their use. As long as she did not know they were dangerous, or had no reasonáble ground to-suspect such to be the fact, her use of them could not be legally considered negligent. She alleges that she. did not. know they were dangerous. There is no allegation from which the inference can be drawn as matter of law that they were so obviously dangerous as to have put a prudent person upon notice of any danger which might result from their use; and the demurrer to the declaration admitting the facts, it should have been overruled, and the questions of faGt made in the case submitted to the jury.

Judgment reversed.