
    HERBST v YOUNG WOMEN’S CHRISTIAN ASSN
    Ohio Appeals, 5th Dist, Stark Co
    Decided Oct 11, 1936
    Hart & McHenry, Canton, for appellant.
    Elson Wefler, Massillon, and Lynch, Day, Pontius & Lynch, Canton, for appellee.
   OPINION

By LEMERT, PJ.

This cause comes into this court on an appeal on questions of law from the Common Pleas Court of Stark County, Ohio. On the second day of March, 1934, defendant maintained, owned and controlled a restaurant in the city of Massillon, Ohio, available for use of the general public. An entry thereto was provided, consisting of a series of steps, rising from the sidewalk to a platform which led into the restaurant itself. The plaintiff below claimed that said steps, maintained by the defendant, had a pitch forward, which caused the back portion to be approximately one inch higher than the front part, and they were sloped from one side to the other.

Plaintiff claimed that rain, sleet and snow had fallen on the morning of March 2nd, 1934, and due to the construction of defendant’s building, in which it operated its restaurant, ice had been caused to form upon the entrance steps hereinbefore described, which was later hidden by a light snow. Plaintiff claimed that she entered the restaurant of defendant on the morning of March 2nd, 1934, for the purpose of using the facilities therein provided and was there as a business guest of said defendant, and claims that upon leaving the restaurant she proceeded to start the descent of steps in question and had stepped from the entrance platform to the first step when her feet flew out from under her and she was caused to fall down the flight of steps onto the sidewalk in front of defendant’s place of business; that as a result of said fall she was injured.

At the close of the testimony offered by plaintiff, as hereinbefore outlined, the court instructed the jury to return a verdict in favor of the defendant and upon this verdict judgment was entered, and it is from that judgment that this appeal is prosecuted.

It is evident from an examination of the record before us that the court sustained said motion upon the ground that there was no proof of any negligence upon the part of the defendant, and that the situation was open and obvious to the plaintiff, her fall occurring in broad da.ylight, upon steps visible to her, and the condition of the steps was visible to her, and the evidence does not disclose that the proximate cause of her fall, with resulting injuries, was in any way the fault of this defendant. And it further appears from the evidence that the condition of the steps was due to natural causes, either snowing or sleeting at the time, and there was no proof that the conditions existing on the steps existed for such a length of time as would constitute negligence on the part of the defendant.

Briefly, the facts in this case present that in broad daylight, at a time when it was snowing and sleeting, about nine o’clock1 in the morning, the appellant went into the cafeteria over these steps. It seems reasonable to believe that she then had an opportunity to observe their condition. She remained inside only a short time and as she came out, she stepped down upon the first step, slipped and fell. It is contended by the appellant that the court should have submitted the case to a jury, because the steps varied slightly in height and size, and being old stone steps, were somewhat worn and were higher at the ends than they were in the center, and that they sloped outwardly.

The record before us discloses that the plaintiff below knew the condition of these steps and knowingly stepped out where snow and sleet was falling at the time.

Counsel for appellant seem to rely upon the statutory provision of §1006, GC. We are of the opinion that this section does not apply to a situation such as we have in this case. That section provides that the owner of a restaurant “shall provide and maintain for all stairs or stairways, for ingress or egress, a substantial hand rail extending from the top to the bottom thereof and firmly fastened to the wall or other support or partition at the side of said stairs.”

We are of the opinion that the above statute is not applicable to the instant case and that this statute does not apply to where there are two steps leading' into a building, that hand rails must be provided.

We find no error in the record in this case and it thereby follows that the judgment of the court below will be and the same is hereby affirmed.

MONTGOMERY and SHERICK, JJ, concur.  