promise creating no binding obligation. The rule upon this subject is thus stated in a recent work: "A promise to repair, made after the lease is entered into, is a mere nudum pactum, and no liability exists on his (the landlord's) part for a failure to make such repairs:" Wood's Land. and Tenant, sect. 382; Libbey v. Tolford, 48 Me. 316; Gill v. Middleton, 105 Mass. 477; s. c. 7 Am. Rep. 548; Doupe v. Genin, 37 How. Pr. 5; s. c. 45 N. Y. 119.

The case is therefore to be treated as one in which there is no contract, on the part of the landlord to repair.

Where there is no duty, there can be no actionable negligence: Cooley on Torts 659; Add. on Torts, sect. 28; Whart. on Neg., sect. 3. In cases of the class to which the present belongs, three of the essential things which the plaintiff is required to establish, are the existence of a duty, that it is owing to him, and that it has not been performed. The material part of the appellant's case could not be made out without showing a duty owing to her from her landlord to keep the demised premises in repair. The duty of the landlord to repair does not arise out of the relation of landlord and tenant; on the contrary, the relation devolves that duty upon the tenant. It is only where the landlord contracts to maintain the premises in repair that he is burdened with that duty. The logical conclusion from this principle, and a more firmly settled one there is not in all the books, is that a landlord not under contract to repair, is not, as a general rule, responsible to the tenant for injuries caused by a defective condition of the demised premises. In a carefully written article in the American Law Review, the authorities are reviewed, and the rule deduced that there is no warranty, express or implied, as to the condition of the demised premises, and that the tenant must determine for himself the safety and fitness of the premises for use and occupancy: 6 Am. Law Rev. 614; Taylor on Land. and Tenant, 6th ed., 381. This is the rule adopted by our own cases: Estep v. Estep, 23 Ind. 114, vide authorities cited, page 116. Ordinarily, therefore, a tenant who leases property takes upon himself all risks, except, perhaps, as against latent defects not discoverable by the use of ordinary diligence, and cannot recover damages from his landlord because of an omission to make the premises habitable or safe. Whether a tenant would have a right to abandon the premises if the means of access to them had become unsafe and dangerous

is not here the question. The question here is, whether the tenant continuing in possession and making use of the premises, can recover damages for personal injuries caused by the unsafe condition of the means of ingress and egress? There are cases, we may remark in passing, holding that even where the landlord covenants to make repairs and fails to do so, the tenant must, where the expense is not great, make them and charge them. against the landlord: Cook v. Soule, 56 N. Y. 420; Loker v. Damon, 17 Pick. 284; Miller v. Mariner's Church, 7 Me. 51; Benkard v. Babcock, 2 Rob. 175. The duty of the tenant to keep in safe condition for his own use the demised premises extends to all the appurtenances connected therewith, and this includes steps, stairways and other approaches. Whatever passes to the tenant under the lease, is for the term designated, under his control and in his possession: Pomfret v. Ricroft, 1 Saund., 5th ed., 321; Wood on Land. and Tenant, sect. 213; Auth. n. 371. If he neglects to make repairs, and suffers the premises to become unsafe, it is clear that in ordinary cases, at least, no action will lie against the landlord for injuries suffered by the tenant, and caused by the unsafe condition of the premises arising from the neglect to repair. It is obvious, from this statement of fundamental principles, that in cases of an ordinary tenancy, the tenant cannot maintain an action against the landlord for injuries caused by the neglect to repair the demised premises, unless the landlord has expressly covenanted to repair.

If the appellant can maintain this action it must be because her case possesses some elements which carry it out of the general rule. The only element in this case which can with any plausibility be said to distinguish it from ordinary cases of tenancy, is that the landlord hired out apartments to separate tenants, and that their common stairway was the common passage for the use of all. It is difficult to perceive how this fact can exert a controlling influence upon the question of the landlord's liability, for, whether the premises are demised to one or to many tenants the principle upon which rests the landlord's immunity from the burden of repairing is not changed, nor does it change the effect of the contract by which the premises are demised. As said by a writer, already referred to: "For a tenant is at once a bailee and a purchaser; he is a bailee because of his ownership being determinable and not absolute; yet being exclusive while it lasts, he is, by the mere fact

of the demise, and in the absence of special undertakings to that effect, charged with a trust to restore the property in substantially the same condition as when he took it:" 6 Am. Law Rev. 614. It would seem clear, on principle, that the landlord's duty is the same whether he demises to one or to many tenants, so far as concerns his liability to a tenant for personal injuries caused by a failure to repair. In Humphrey v. Wait, 22 Upper Canada C. P. 580, the plaintiff had hired apartments of the defendant in a building occupied in part by other tenants, and sustained injuries by stepping through a hole in the floor of a common passage-way leading to the apartments, and it was held that an action could not be maintained against the landlord, and a nonsuit was directed. In the course of the opinion delivered in that case, HAGARTY, C. J., said: "It would be a singular state of the law if a landlord would not be answerable if he demised the stairway with the upper story, and would be answerable if he only gave a right to use the part of the house actually demised." In Gott v. Gandy, 2 E. & B. 845, Lord CAMPBELL, said: "Now let us see what are the facts alleged. They are these: the defendant was the landlord of the premises which were let to the plaintiffs from year to year; during the tenancy the premises were in a dangerous state for want of substantial repairs; the defendant had notice from the plaintiff, and was requested to repair them, and did not do so. There is no allegation of any contract to do substantial repairs. It lies therefore on the counsel of the plaintiffs, who are the actors, to establish on authority or on principle, that this obligation results from the relation of landlord and tenant. Mr. Russell can produce no authority in his favor, not even a dictum. And I have heard of no legal principle from which it would follow that the landlord was bound to repair the premises."

In Cartairs v. Taylor, L. R., 6 Ex. 216, the doctrine was carried to the extent of holding that there is no liability on the part of the landlord who himself occupied a part of the premises, unless it is shown that he was negligent with respect to the particular act which caused the injury. The English cases agree in holding that for injuries for a failure to repair, no action will lie by the tenant against the landlord: 1 Add. on Torts 240; Smith on Land. and Tenant 206; Robbins v. Jones, 15 C. B. N. S. 221; Payne v. Rogers, 2 H. Bl. 350.

Turning to the American authorities, we find in one of our

books this statement of the rule, whether too broad or not we need not stop to inquire: "The liability of the landlord exists only in favor of persons who stand strictly upon their rights as strangers:" Sherman and Redf. on Neg., sect. 503. Another author says: "An owner being out of possession, and not bound to repair, is not liable in this action (i. e., for nuisance), for injuries received in consequence of his neglect to repair:" Whart. on Neg., sect. 817. In still another work, it is said, in speaking of a landlord's liability: "Nor in the absence of a covenant to repair is he liable for injury resulting from the faulty construction or condition of the premises, the control over which is in the hands of a tenant, either to a tenant or third persons:" Wood on Land. and Tenant, sect. 384; 1 Thomp. on Neg. 323. In 14 How. Pr. 163, the action. was for injuries received from falling down a stairway forming a common passage-way, by one tenant occupying part of premises, also occupied by other tenants of the same landlord, and it was held that no action could be maintained. The same general principle is declared in the cases of Doolittle v. Howard, 3 Duer 464; Robbins v. Mount, 33 How. Pr. 24. In Kaiser v. Hirsh, 46 How. Pr. 161, it was held that an owner who occupied a part of the house was not liable for an injury to a visitor to one of his tenants, unless it was shown that his (the landlord's) negligence was the cause of the injury, and that the fact that he occupied a part of the premises created no presumption against him; a like doctrine is declared in Moore v. Goedel, 34 N. Y. 527. The Supreme Court of California, held in the case of Loupe v. Wood, 51 Cal. 586, that there was no liability on the part of the landlord arising from the defective condition of the walls of the cellar.

We have examined the cases cited by the appellant, and do not find any of them in point. The cases in the Georgia Reports are not in point, because they are founded upon an express statute making it the duty of the landlord to repair. The cases of Godley v. Hagerty, 2 Penn. St. 387, and House v. Metcalf, 27 Id. 600, were actions by a stranger, and are therefore not in point.

Fisher v. Thirkell, 21 Mich. 1; s. c. 4 Am. Rep. 422, is against rather than in favor of the appellant. In that case the landlord was held not to be liable to one who suffered an injury by falling through a scuttle in a sidewalk adjoining premises in the possession of a tenant. The other case cited, Shindelbeck v. Moon, 32 Ohio St. 264; s. c. 30 Am. Rep. 584, is also against the doc

trine maintained by counsel. In that case the injury was occasioned by the accumulation of ice upon steps leading into a storeroom owned by the defendant, but occupied by a tenant; and the holding was that the landlord was not liable for injuries sustained by a stranger. In closing the opinion it was said: "And again it was the ice that occasioned the accident. It is not averred that it was the duty of the landlord to remove this ice, nor does it appear that he was called upon to do it. If this ice was a nuisance to the passing public, endangering their lives and limbs, it was a nuisance arising during the continuance of the lease. It was a thing temporary in its nature, a defective condition of things such as the tenant was called upon to remedy, and not the landlord, as between landlord and tenant."

We have, in our investigation, found one case which lends support to the general doctrine for which appellant's counsel contend. The case to which we refer is that of Looney v. McLean, 129 Mass. 33; s. c. 37 Am. Rep. 295. In that case the wife of the tenant of a part of a tenement-house occupied by several families, was injured by the giving way of one of the steps of the stairway leading to the roof of a shed used in common by the tenants for the purpose of drying clothes; and it was held that an action would lie against the landlord.

The question is not discussed, and only cases from Massachusetts are cited, and they do not decide the point. On the contrary, such of them as apply to the relation of landlord and tenant, recognise the rule that the landlord is not liable to the tenant for a failure to repair. Two of them do not touch upon the subject of a landlord's liability. One of the two is upon the question of the liability. of a railroad company which constructs a passage-way across a public street, and the other is upon the same general question. But conceding the soundness of the ruling in that case it does not apply to the case at bar, for here the cause of the injury was not the defective construction of the stairway, or its unsafe condition at the time the premises were leased. The stairway here is directly connected with the part of the premises leased to the appellant; in the Massachusetts case it was otherwise. Here the thing which made the stairway unsafe was the temporary covering of snow and ice. While in the Massachusetts case the unsafe condition was permanent and had long existed. It is not necessary for us in the present case to lay down any general rule upon the subject of a