
    Miller v. The East Ohio Gas Co.
    (Decided May 26, 1930.)
    
      Messrs. Borden & Gaines, for plaintiff in error.
    
      Messrs. Tolies, Hogsett & Ginn, for defendant in error.
   Sullivan, J.

This cause is here on error from the common pleas court of Cuyahoga county, and it appears that the parties stood in the same relation in the court below, and that the suit was for the recovery of personal injuries based upon allegations in the amended petition that the plaintiff while a tenant in an apartment had occasion to go to the basement for coal, and, while there, in arising from a stooping position, struck her head against a gas meter fastened to the wall, the legal structure upon which the suit rests being the violation of an ordinance which provides:

“Gas meters shall not be placed underneath any stairway or in any clothes or storage closet or in dead space between the floors under show windows, and when located in any cellar or basement such location shall not be in any fuel or furnace rooms, but they shall be placed close to the front wall at least four (4) feet above the floor and as near a window as possible, with an unobstructed passageway leading thereto. ’ ’

The record discloses that the gas meter was against the wall thirty-two inches above the floor, instead of four feet, as provided by the ordinance, but nowhere does it appear in the evidence that because of the difference in height the proximate cause of the injury arose. From a reading of the ordinance the purpose is not clear, and whether it was to furnish a convenient place for the testing of the meter by the gas man, such as being placed in the light instead of in the dark, or whether for some other purpose, is immaterial, for the reason that it is obvious from a reading of the ordinance that its purpose was not for the benefit of the tenant, the plaintiff.

The gas meter, whether at thirty-two inches or four feet above the floor, has no connection, in our judgment, with the safety of the tenant. It is not unreasonable to say that one of the purposes of the placing of the gas meter was to establish uniformity, but it cannot be said that the height of the gas meter had any effect or was intended to bear any result which might affect the safety of the tenants, because it is self-evident truth that all tenants are not of the same stature, and that the height of the meter would vary in its danger with the height of the tenant and defeat such intent.

In the interpretation of a case based solely upon the violation of an ordinance, as is the case at bar, we must keep in mind the law. It is laid down in 45 Corpus Juris, 727 and 728, that, in order to constitute negligence in the violation of an ordinance or statute, it is necessary that the obligation imposed be for the benefit of the person alleging injury, and this, of course, means that one so claiming must stand fipon the proposition that the ordinance was intended for protection. This is not the situation in the instant case. It is not sufficient to show negligence of the duty imposed by the ordinance, but it is necessary to go further and show that the injury would not have happened had the ordinance been conformed to in the respect questioned, and it is also necessary to show that the imposition of the duty was for the security and benefit of the party claiming right to recover. 20 Ruling Case Law, 41.

Again, in actionable negligence with respect to an obligation imposed by ordinance, in order to secure a recovery for injuries, it must be shown that the injury was under the contemplation of the purposes of the ordinance, which the ordinance was created to prevent. Conway v. Monidah Trust, 47 Mont., 269, 132 P., 26, L. R. A., 1915E, 510.

The ordinance in question is found under a subdivision of the Building Code of the city of Cleveland, and the purpose of the code is to provide uniformity in building, and its design is for the benefit and convenience of persons using the structure. We think a reading of the ordinance makes manifest the fact that the city council in passing it had in mind the necessity for uniformity, so that the agents of defendant could conveniently find the location of the gas meter, and find access to it with the least inconvenience possible, but in any event uniformity of its location was necessary to a convenient and proper monthly examination and reading of the meter. All this is for the convenience of all parties, but there does not issue therefrom the interpretation that its purpose was for protection.

From the reasoning employed in the discussion of the case we do not think that the plaintiff can recover from defendant, because the placing of the meter was not an act of negligence, or, if it was, it is not the basis of recovery because its purpose was not for the benefit or protection of plaintiff. In this connection see Hamilton v. Minneapolis Desk Mfg. Co., 78 Minn., 3, 80 N. W., 693, 694, 79 Am. St. Rep., 350. Taking an excerpt from the opinion in the case just cited, w>e read:

“In an action for neglect of duty, it is not enough for the plaintiff to show that the defendant neglected a duty imposed by statute for the benefit of somebody else, and that such person would not have been injured if the duty had been performed; but he must also show that the duty was imposed for his benefit, or was one which the defendant owed to him for his protection. ’ ’

Thus it will be seen from the line of decisions cited that under all the facts of the record there was no breach on the part of defendant. From a reading of the record it seems clear, on the question of contributory negligence, that the plaintiff could not recover, for it is conclusive from the record that when she picked up the coal the meter with which she came in contact was before her in the same line of vision as the coal itself, and when she stooped to pick up the coal she could have avoided contact with the gas meter which was in front of her. It is obvious that if she could see the coal she could see the meter.

We think the trial court committed no error in ruling that as a matter of law plaintiff was guilty of contributory negligence.

Attorneys for plaintiff, in argument, to show that the case was one for the determination of the jury, cite the case of City of East Cleveland v. Wald, 103 Ohio St., 373, 133 N. E., 798. In that case the question concerned a defectively built sidewalk and curb, and there was proof in the case that plaintiff, had she looked, would have discovered the defect, and there was no evidence that she saw it; and in that case plaintiff had a right to assume that the sidewalk was unobstructed, and, in the absence of knowledge, could not be held guilty of contributory negligence as a matter of law. We do not think such an assumption arises from the record in the case at bar.

Another case cited by able counsel for plaintiff is Tresise v. Ashdown, Admr., 118 Ohio St., 307, 160 N. E., 898, 58 A. L. R., 1476. That case involved a highway, and we think there exists in this case the same distinction as we have noted in the Wald case, supra.

The court below directed a verdict for defendant at the conclusion of plaintiff’s case, on the ground that the duties imposed by the ordinance were not for the benefit of plaintiff, and that she was guilty of contributory negligence as a matter of law.

We hold that there was no error in this judgment, and the same is hereby affirmed.

Judgment affirmed.

Vickery, P. J., and Levine, J., concur.  