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FALLING OVER BALCONY
303
But in any event, whether by an implied covenant or an express covenant by the lessor, there must be notice, actual or constructive on his part, before liability can attach.28
Section 93. — Falling over balcony.
A frequent cause of accidents is the giving way of the railing of a balcony thereby precipitating a spectator into the auditorium below. It then becomes a question of fact to determine whether the rail was insecurely fastened. The proprietor’s liability has been rigidly enforced in Canada, where even the employment by him of an expert architect did not prevent the plaintiff’s recovery.29
In this country, recovery for such an accident is difficult, as it is not an easy matter to prove the faulty or insecure construction of the railing. In one case, the lessee was
28 Lowell v. Spaulding (1849), 58 Mass. 277. A lessor of a theatre who covenants to make reasonable repairs on the leased premises is not liable to his lessee or patrons of the theatre for a breach of this covenant unless he had knowledge, actual or constructive, of the defects complained of.
See also: Glynn v. Lyceum Theatre Co. (1913), 87 Conn. 237; 87 Atl. 796. Contra: Clyne v. Helmes (1898), 61 N. J, L. 358; 39 Atl. 767.
29 Stewart v. Cobalt Curling (Can.) (1909), 19 Ont. L. R. 667;
14 Ont. W. Rep. 179; aff’d 14 Ont. W. Rep. 1063. Plaintiff, in leaning against a railing of a balcony where he was seated, was precipitated to the floor below because of the giving way of the railing. Held that defendant was liable notwithstanding the fact that he had employed a competent architect who supervised the erection of the rink. The court quoted with approval Francis v. Cockrell (Eng.) (1870), L. R. 5 Q. B. 501.
See also: Stevenson v. Glasgow Corp. (Scotch) (1908), Sc. Ct. Sess. 1034.