Schlemmer v. Stokes

WOOD, J.

Plaintiff commenced this action to recover damages for injuries suffered when he fell through a window of an apartment in defendant’s apartment house which had been rented by his parents. It is alleged in the complaint

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that a screen in the window had been placed in a defective frame and that it was negligently attached to the window sill. A jury returned a verdict in favor of defendant but the trial court granted a new trial. The appeal is taken from the order granting the new trial.

The apartment in which the minor plaintiff resided with his parents consisted of a living room, kitchen, bathroom and bedroom, all on the second floor of the building. The parents paid for the apartment the sum of $27.50 per month, half of which was paid every two weeks. When they rented the apartment they stated that they would probably occupy it for two or three months. Defendant testified that .apartments in the building were rented by the week and by the month but once in awhile she rented for the night if it was somebody she knew. She retained keys to all of the apartments, which were completely furnished, but the tenants took care of the laundering of the linen. A register of the tenants was kept. Gas, light and water were supplied by defendant.

At the trial the court, being of the opinion that the evidence was insufficient to sustain a finding that defendant was an innkeeper, instructed the jury concerning the general rules applicable to the relation of landlord and tenant. On the presentation of a motion for a new trial the trial court concluded that there was evidence from which an inference might be drawn “that plaintiff’s parents' were guests of the defendant’s apartment house” and that error had been committed in the refusal to give instructions concerning the obligations of an innkeeper. In granting the motion for a new trial the court filed a written memorandum in which it is set forth: “Notwithstanding the fact that I believe the great weight of the evidence supports the giving of the instructions that were given as to the relationship of such parties and that it also supports the inference that more pressure was exerted on the screen than any ordinarily safe window screen would have resisted, still inasmuch as in my opinion the jury might not have so inferred from the evidence if such instructions had not been refused and the issue had not been limited by the instructions as they were given, I am forced to grant a motion for new trial on the ground of errors in law committed by the trial court, as well as on the ground that the evidence does not justify the verdict.”