Coffee v McEvoy and Another

• Jurisdiction: Ireland
• Judge: K. B. Div.
• Judgment Date: 05 February 1912
• Court: Court of Appeal (Ireland)
• Docket Number: (1910. No. 10118.)
• Date: 05 February 1912

Coffee

and

McEvoy and Another (1).

K. B. Div.

(1910. No. 10118.)

CASES

DETERMINED BY

THE KING'S BENCH DIVISION

OF

THE HIGH COURT OF JUSTICE IN IRELAND,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL,

AND BY

THE COURT FOR CROWN CASES RESERVED.

1912.

Negligence — Injuries sustained by trespasser — Landlord and tenant — Over-holding — Demand of possession — Execution of warrant — Relation back — 14 & 15 Vict. c. 92, sect. 15 — Owner of house whether under any liability to trespasser for safe condition of premises.

Held, on these facts, that the infant plaintiff and his parents were trespassers, and there was therefore no obligation on the landlord to maintain the premises in such condition as to prevent the child falling through the window in question.

Motion to set aside verdict. The plaintiff, an infant suing by his father as next friend, claimed damages for personal injury sustained by reason of the negligence of the defendants, who were husband and wife, and the owners of the premises upon which the accident occurred.

The following is the statement of claim:—

1. The claim of the plaintiff, who is an infant suing by Andrew Coffee, his next friend, is, that he has suffered damage from personal injuries, sustained by him on the 22nd day of August, 1910, by reason of the staircase at the house 46 Queen

Street, in the city of Dublin, being out of repair, unprotected, and dangerous to persons lawfully using the same.

2. The said house was owned by the defendants, and the rooms in said house were let out by them to different tenants, the defendants retaining the possession and control of the said staircase, which was the only mode of access to the said rooms.

3. At the time when he sustained the said injuries the plaintiff was lawfully using the said staircase.

The plaintiff claims £500 damages.

The defendants delivered a statement of defence as follows:—

1. The defendants deny that the staircase of the house, 46 Queen Street, was out of repair, unprotected, or dangerous, as in the first paragraph of the statement of claim is alleged, or at all.

2. The defendants deny that they are the owners of the said house, and deny that the rooms in the said house were let out by them to different tenants, or that the defendants retained possession or control of the said staircase.

3. The defendants deny that the plaintiff was lawfully using the staircase of the said house at the time of the alleged accident, and say that the plaintiff was not a guest, servant, or customer of, or otherwise invited on the premises by a tenant of the said premises or any portion thereof.

4. The defendants say that the plaintiff was at the date of the alleged accident a trespasser on the said premises.

5. The defendants deny that the plaintiff suffered all or any of the damage alleged.

6. Admitting for the purpose of this defence, but not further or otherwise, that the defendants, or either of them, were or was the landlady or landlord of the said house, the said defendants deny that they or either of them were or was bound or under any obligation to repair the said premises or the staircase.

7. The defendants will submit at the trial of this action that the statement of claim discloses no cause of action.

The action was tried before Dodd, J., and a common jury of the city of Dublin, on November 17th, 1911.

The following facts appear from the Judge's report of the evidence taken on the trial:—Plaintiff's mother took two rooms on the second floor of the tenement house, 46 Queen Street, Dublin, from the defendants, and paid some rent in advance, the tenancy being a weekly one; the stairs were not part of the take, and there was a landing outside the rooms, and on this landing a window looked out upon the yard below. After two weeks' rent had been paid, she complained of the bad repair of the rooms, and also of the condition of the window on the landing, and refused to pay any more rent until the place was repaired; thereupon, on the 8th of August, defendants gave a week's notice to quit; this notice expired on the 15th of August, and possession was demanded on the 16th; on the 17th a summons to recover possession of the premises was issued, and on the 25th of August the magistrate gave the decree for possession. About six days before the accident two workmen came and removed the lower half of the window, and left it lying against the wall; the mother of the plaintiff further alleged that on this occasion she spoke to one of the workmen, and asked what was he going to do with the window, that it was in a dangerous condition, and why would he not lath it? On the 22nd of August she left two of her daughters, one aged 17 and the other 15, in charge of the plaintiff while she herself was absent, and when she returned the boy had been removed to hospital. Other witnesses for the plaintiff gave evidence that the boy fell out of the open window on the landing to the yard below, a distance of 24 feet, and sustained very severe injuries.

At the conclusion of the plaintiff's case, counsel for the defendants asked for a direction on the grounds that the plaintiff was a trespasser, defendants owed no duty to him, that there was no evidence of negligence on the part of defendants or that they knew of the danger, nor was there any evidence that the two men who were alleged to have removed the window were in the employment of the defendants. The Judge declined to so direct.

The witnesses for the defence gave evidence to show that the lower half of the window, which was alleged to have been removed, was not self-supporting, and would not stay up unless it was propped, and that there was a lath on each side of it which could only be removed by a chisel, that no complaint had been made to the defendants by the plaintiff's parents concerning this window, that it had not been removed by any workman of theirs, and one of the defendants' witnesses, named Emily Sullivan, stated that she had seen Mrs. Coffee take out the window some days previous to the accident, and that she (witness) had put it back.

The following questions were submitted to the jury:—

1. Was the window at the time unsafe for children resident in the house?

2. Was the window in fact left in an unsafe condition by persons in the employment of the defendants acting within the scope of their authority?

3. If so, was it so left negligently?

4. Did the defendants know, or by the exercise of reasonable care and diligence ought they to have known, that the window was unsafe for children resident in the house?

5. Was the plaintiff a child resident in the house at the time of the occurrence.

6. Did the defendants know that the lauding would be used, and the window approached, by children resident in the house?

7. Damages?

The jury having asked whether they could find a verdict without an answering of No. 2 and the questions following consequent upon it, the Judge said he would frame substituted questions on that basis, and would relieve the jury from findings on questions 2, 3, and 4 in the original paper.

The questions on which the jury found, with their answers, are as follows:—

On the Original Paper.

1. Was the window at the time unsafe for children resident in the house? Answer— “Yes.”

5. Was the plaintiff a child resident in the house at the time of the occurrence? Answer— “Yes.”

6. Did the defendants know that the landing would be used, and the window approached, by children resident in the house? Answer— “Yes.”

7. Damages? Answer— “£50.”

On Second Paper.

1. Did the defendants take reasonable precautions to prevent the window from being dangerous to young children resident in the house? Answer— “No.”

2. If you answer “No,” then state what reasonable precautions they omitted? Answer— “Reasonable guard.”

3. Could the defendants have reasonably anticipated that the window might be taken from its sash, leaving an unprotected opening? Answer— “Yes.”

Upon these findings the jury found for the plaintiff with £50 damages by direction of the Judge. The Judge gave judgment for the plaintiff for £50 with costs.

The learned Judge's report further stated that “at the close of the defendants' case Mr. Jefferson renewed his requisition. He objected to any questions being put. I asked counsel for the plaintiff did they think they had any evidence of the window having been in fact taken out of the sash by servants of the defendant. They pressed the question, and I drafted the first question paper submitted to the jury on this basis. The certificate of the Registrar correctly sets the questions put. The case mainly made was, that the defendants were brought into privity with the taking out of the sash on the occasion referred to. If the sash was removed by servants of the defendants, acting negligently, and if there was a duty to the plaintiff on the occasion from the defendants to take care, that would seem to conclude the matter.

“If it was necessary to prove that the defendants knew, or reasonably ought to have known, that the window had been in fact left open and so unsafe, there was no evidence of any complaint or notice by anybody during the six days to bring knowledge home to the defendants. Mr. Jefferson objected to my charge, but I think it was not unfavourable to him. I did not attach much weight to Mrs. Coffee's evidence, and I thought even if the jury believe her, the evidence fell short of showing that servants of the defendants did the act. I interpreted question 4 on the original paper as being pointed to the particular unsafeness of leaving the window open. I desire to state this clearly, in order that Mr. Jefferson's objection that the case was recast in what subsequently happened may have full force. It will be observed that the questions put to witnesses as to circumstances outside the particular act complained of were mainly put either by the Judge or by the jury. Mr. Jefferson identified the boy with his parents: they were all trespassers; there was no duty. Mr. O'Connor relied on Mrs...