The doctrine of the English courts may be illustrated by the cases of Miller v. Hancock, 2 Q.B.D. (1893) 177, l.c. 180, and Hargroves Co. v. Hartopp, 1 K.B.D. (1905) 472. In the first of these cases the defendant was the owner of premises leased in flats to tenants. The plaintiff was collector for a railway company, who in that capacity called upon the tenant of one of these flats and in coming down the staircase, through a defect in the stair, fell and broke his leg. BOWEN, L.J., said: "The tenants could only use their flats by using the staircase. The defendant, therefore, when he let the flats, impliedly granted to the tenants an easement over the staircase, which he retained in his own occupation, for the purpose of the enjoyment of the flats so let. Under those circumstances, what is the law as to the repairs of the staircase?" He then proceeded to hold that under these circumstances the landlord had given the tenant a right to use the staircase and undertaken to keep it reasonably safe for the use of the tenants and also of those persons who would necessarily go up and down the stairs in ordinary course of business with them. He concluded that the creation of the relation of landlord and tenant in such a case would be an absurdity if not founded upon such an implied duty. His conclusion was founded upon the reasoning of Lord MANSFIELD in Taylor v. Whitehead, 2 Douglas, 745. In Hargroves Co. v. Hartopp, this case was followed by Lord ALVERSTONE, C.J., who, in commenting upon the opinion of BOWEN, L.J., in the Miller Case, said that he understood it to mean that the duty to repair was coextensive with that created by express covenant; that is to say, that it was an absolute duty to keep the premises in safe condition at all events, and not merely a duty to take reasonable care to do so. He expresses some doubt as to the absolute nature of the duty, but declined to decide the point, placing his decision upon the ground of the failure of the landlord to exercise reasonable care. This is the general doctrine of the courts in this country. [Sawyer v. McGillicuddy, 81 Mo. 318; Shipley v. Fifty Associates, 101 Mass. 251; *Page 653
Looney v. McLean, 129 Mass. 33; Home Realty Co. v. Carius, 224 S.W. (Ky.) 751; King Metzger v. Cassell, 150 Ky. 537; Kansas Investment Co. v. Carter, 160 Mass. 421; Bissell v. Lloyd,100 Ill. 214; O'Connor v. Andrews, 81 Tex. 28.]