Smith v. Buttner

Temple, C. — This appeal is on the judgment roll from a judgment against the plaintiffs on the pleadings.

The plaintiffs are husband and wife, and the action is brought to recover damages for injuries received by the wife. Plaintiffs were occupying a house belonging to defendant as a residence, being his tenants from month to month.

The complaint shows that some time prior to June, 1887, while plaintiffs were in possession as tenants, defendant caused the dwelling-house to be raised some six or seven feet; that plaintiffs continued to reside in the house after it had been raised, and to pay rent to defendant, as before; that after raising the house, and while plaintiffs and their family were living in it, defendant wholly failed and neglected to provide any safe and proper means of entrance to or egress from the house, and “ by reason of the negligence and failure of defendant to provide safe, suitable, or proper means of exit from said house, said plaintiff, Dora Smith, on said thirtieth day of June, 1887, in endeavoring to descend from said house to the ground, for a proper and lawful purpose, while in the exercise of due care and diligence, and without any fault or negligence on her part, fell to [99]the ground, and dislocated her left wrist, and broke the bone of her left arm, near the wrist, and sustained other severe and painful injuries,” etc.

To this complaint the defendant answered, specifically denying every allegation, except as to the relation of landlord and tenant.

A jury being impaneled for the trial of the cause, plaintiff Dora was sworn as a witness, and her testimony taken. Thereupon counsel for the defendant moved for judgment on the pleadings, and the motion was granted.

It is manifest from the complaint that the injury to plaintiff Dora did not occur while the work of raising the house was in progress. The complaint fails to show how long before the injury it was since defendant had been engaged in the work, but it is averred that they continued to occupy the house after it had been raised, and paid rent as before, and that the injury occurred after.

The negligence consisted simply in failing to provide a safe, proper, and suitable means of entrance to or egress from the house, and it is alleged that this negligence caused plaintiff to fall. But no fact is averred which shows that such negligence had anything to do with the accident. How did it cause her to fall? It may have been because defendant neglected to provide any means of egress whatever, or through some patent defect in the plan of the contrivance, whatever it was. In such case plaintiff could not recover in this action. (Sieber v. Blanc, 76 Cal. 173.)