Negligence — Dangerous chattel on premises — Landlord out of possession — Liability for injury not anticipated.
1. A landlord owes no duty to an invitee or others on the premises in the possession of his lessee if the latter has or brings dangerous chattels on the premises. [452]
2. One in possession of property is not liable for injury to a person on the premises where the injury is such that he is not bound to anticipate its happening. [452]
Practice — Trial — Charge — Exceptions — Specific or general — Errors not fundamental or basic — Neglect to object.
3. Errors in a charge which are not basic and fundamental must be made the subject of specific objections and cannot be complained of under a general exception to the charge. [453]
4. Where a party to a suit is given an opportunity to remedy any defect or inadequacy in a charge and neglects it, he cannot complain. [453]
Argued September 30, 1932.
OPINION BY MR. JUSTICE KEPHART, November 28, 1932:
Schultz owned a large unimproved, unfenced lot of ground in Clairton, Allegheny County. It was part of a field that had been used as a playground and baseball park. Children were permitted to play there unmolested. In 1928 the lot was leased to Smith for a carnival. He erected a merry-go-round, ferris wheel and other forms of amusement. Smith removed part of the equipment, leaving the merry-go-round. It was unattended, and while playing on it Medvidovich climbed up a post, was caught in revolving gear at the top and sustained a serious injury, for which an action was brought against Schultz, the landlord. The jury found against the claim and the verdict was sustained by the trial court. This appeal follows.
The turning point in the court below was whether or not the landlord had taken possession of the merry-go-round through distraint or otherwise, and the jury's attention was first directed to that question. They were instructed that if they found the landlord had not taken possession of it, he would not be liable, and all other questions would drop out of the case. The landlord owes no duty to an invitee or others on the premises in the possession of his lessee if the latter has or brings dangerous chattels on the premises. The jury found for the landlord and by the verdict determined that he was not in possession; or that being in possession, the injury was such that he was not bound to anticipate its happening, which latter finding the court had properly submitted would relieve him from liability. See Venzel v. Valley Camp Coal Co., 304 Pa. 583, 590; Rugart v. Keebler-Weyl Baking Co., 277 Pa. 408.
All the assignments apart from the refusal of a motion for a new trial relate to the charge of the court. We have repeatedly held that when the errors in the charge are not basic and fundamental they must be made the subject of specific objections and cannot be complained of under a general exception to the charge: Herb v. Hallowell, 304 Pa. 128; Phila. v. Stange, 306 Pa. 178; Schlossstein et ux. v. Bernstein, 293 Pa. 245. It is only when the errors are basic and fundamental and can not be corrected at trial that we consider them under a general exception: Steel v. Armstrong Co. Mut. F. Ins. Co., 305 Pa. 259.
The court here touched upon every legal matter involved in the case. The complaint made is that the charge was inadequate, and did not fully cover these questions. At the close of the case counsel were asked if there was anything further they wished to have said to the jury. While appellant made a suggestion about other matters, no objection or suggestion was made as to the matters here complained of. This is a situation the rule above cited was designed to cover. Appellant was given an opportunity to remedy any defect or inadequacy in the charge. One cannot take a chance on a verdict and then base the demand for a new trial on specific errors in the charge which he had ample opportunity to correct at the trial.
Judgment affirmed.