Before KIMBROUGH STONE, Circuit Judge, retired (sitting by designation), and WILBUR K. MILLER and BAZELON, Circuit Judges.
UNITED STATES COURT OF APPEALS DISTRICT OF COLUMBIA CIRCUIT.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MILLER
WILBUR K. MILLER, Circuit Judge.
The appellant, Sarah Edna Bowles, is the owner of a parcel of ground at 2320 H Street, N.W., in the District of Columbia. The lot is some 6 feet higher than the level of the traveled portion of H Street, and the residence thereon extends to the front property ling. In front of the house the publicly owned "parking" *fn1 rises somewhat abruptly from the front sidewalk so that a flight of nine steps is required to reach the front door from the sidewalk - a distance at street level of about 20 feet. Thus the parking in front of the residence is a rather high sloping bank of earth between the sidewalk and the property line, which seems to the passerby to be the front yard of the residence Technically, however, the parking is a part of the street owned by the United States and controlled by the District of Columbia.
On one side, the dwelling at 2320 H Street is attached to the house on the adjoining lot. Along that side line of the property is a passageway 2 1/2 feet wide which extends from the front sidewalk through the parking and under the house through a tunnel-like opening. This passageway, which gives access from the sidewalk to the rear of the premises is on the level of H Street. From the sidewalk to the house, the passageway is protected from the sloping bank of the remainder of the parking by a brick retaining wall which rises with the slope of the bank until it reaches, at the house, a height of about 6 feet. A permit for the erection of the retaining wall in the parking was issued by the District of Columbia on February 18, 1896. It may be presumed that the then owner of the property at 2320 H Street constructed the wall soon after that date.
On December 15, 1936, B. F. Saul Company, apparently the renting agent for the owner, Mrs. Bowles, leased the entire premises at 2320 H Street to one Luke Gaither. The lease, a copy of which is in the record, does not obligate the landlord to make repairs. There is no statute imposing that duty on a landlord. Gaither's sister, Mrs. Helen Armstrong, who had lived in the house some years before the date of the lease, continued thereafter to occupy it with her brother. On March 30, 1948, Mrs. Armstrong's son, Ralph Mahoney, who was then 7 years old and who lived at 2320 H Street with his mother and uncle, was at play in the passageway above described at a point perhaps half way between the property line and the front sidewalk, which was therefore in the area known as the parking. A portion of the retaining wall collapsed and struck him, inflicting serious injuries.
Through his mother as next friend, the child brought this tort action against Mrs. Bowles, the owner of the property, and against the District of Columbia. It was alleged in the complaint that Mrs. Bowles erected the brick retaining wall in the publicly owned parking with the knowledge and consent of the District of Columbia
". . . for the enhancement of value and benefit of premises 2320 H Street, N.W. owned by defendant, Sarah Edna Bowles.
"That as the result of the defendant's *fn2 negligence and failure to keep said wall in good repair, on March 30, 1948, the said wall fell, collapsed and crumbled upon the plaintiff, Ralph Mahoney, while the plaintiff was using the aforesaid abutting and adjoining sidewalk for a lawful and proper purpose."
Thus the plaintiff's theory is seen to be this: Mrs. Bowles, having constructed the wall in the parking for the benefit of her property, was under a duty to maintain it in a safe condition; she violated her duty by negligently failing to keep the wall in repair; as a result of her negligence the wall collapsed and injured tenant's invitee; she is therefore liable in damages to the invitee. The District of Columbia, says the complaint, permitted the structure to be erected, and negligently failed to keep it in repair.
Mrs. Armstrong testified at the trial that two years before the accident she had noticed a crack in the retaining wall *fn3 which she attributed to an explosion which had occurred in a nearby electric "sewer." Although she did not regard the condition as dangerous, she informed B. F. Saul Company that the wall had cracked and was told it would not be repaired. No notice of the crack in the wall was given to the District of Columbia. Mrs. Armstrong said that on previous occasions B. F. Saul Company had caused minor repairs to be made to the premises. There was no other evidence tending to show what caused a portion of the wall to fall. Mrs. Armstrong, who at the time was seated at the front window of the house, said she saw the wall suddenly collapse. Ralph's aunt testified to the same effect.
The defendants' motions for a directed verdict, made at the conclusion of the plaintiff's evidence, were denied. Mrs. Bowles stood on her motion and introduced no evidence. The District of Columbia proceeded with proof, and at the end of all the evidence both motions were renewed and again denied. Over the objection of the defendant, the trial judge instructed the jury on the doctrine of res ipsa loquitur. *fn4 Having been so instructed, the jury found for the plaintiff child in the sum of $2,500.00 against both defendants. These appeals are from the judgment entered pursuant to the verdict. Both defendants complain of the District Court's failure to direct a verdict in their favor and of the instruction on res ipsa. The District of Columbia assigns other related errors.
As to Mrs. Bowles. Judge Groner, speaking for this court in Harrison v. Mortgage Inv. Co., 1932, 61 App.D.C. 155, 156, 58 F.2d 881, 882, said, "before the owner of the premises can be held liable [for injuries due to a defect therein], there must be a failure on his part to perform a duty which the law imposes." We must therefore ascertain whether Mrs. Bowles owed the child the duty of maintaining the wall in good repair.
The plaintiff, Ralph Mahoney, was living in the house at the invitation of his uncle, who was Mrs. Bowles' tenant, so he was using the appurtenant passageway as the tenant's invitee. The rule is that the duties and liabilities of a landlord to persons on the leased premises by the invitation of the tenant are those owed to the tenant himself. Fraser v. Kruger, 8 Cir., 1924, 298 F. 693. It follows that Mrs. Bowles is not liable for the child's ...