
    Pinchefsky v. Goldstone.
    
      (Decided September 16, 1929.)
    
      Messrs. Thorman & Goldman, for plaintiff in error.
    
      Messrs. Baker, Hostetler S Sidlo, for defendant in error.
   Levine, J.

Plaintiff in error, Harry Pinehefsky, filed a petition in common pleas court against defendant in error, Rebecca Groldstone, for injuries resulting to him from a defective handrail and stairway alleged to be owned by defendant in error. A demurrer filed by defendant in error, after a hearing, was sustained by the common pleas court. Error is prosecuted seeking the reversal of the ruling of the common pleas court. We are therefore relegated to a reading of the petition, in order to determine whether it contains allegations constituting a cause of action.

It appears from the petition that plaintiff in error was a tenant in the exclusive possession and occupancy of a storeroom, on the ground floor, and of a basement directly below the storeroom, connected therewith by wooden steps. The petition states that on April 9, 1928,, as the plaintiff was in the act of carrying a sack of potatoes down the stairway for the purpose of storing the same in said basement, while he was walking down said stairway and holding to the handrail along the same, the handrail broke and caused him to' fall violently to the floor of the basement, thereby causing the injuries complained of. In describing the handrail, the petition states that the same was fastened in a very loose manner; that it had not been securely nailed; that the wood was weak and rotten, and not of sufficient strength to be used as a handrail. In setting forth the violation of duty on the part of the landlord, the petition states that the defendant did not have and did not keep the premises in good condition and repair, that the plaintiff had no notice or knowledge of any kind of the dangerous condition of said stairway and handrail, and that the dangerous condition of said stairway and handrail was not apparent, and could not be discerned by ordinary observation.

The plaintiff states in the petition that he relied upon the promise and agreement of the defendant that said premises were in good condition and repair, and that said defendant would keep said premises in good condition and repair. This promise and agreement on the part of the landlord as set forth in the petition contains two subdivisions: (1) That the premises were in good condition and repair; (2) that he would keep said premises in good condition and repair. Subdivision 1 cannot be taken in the nature of a promise. If anything, it is nothing more or less than a representation concerning the condition of the stairway and handrail at the time the tenant entered into possession and occupancy. Nowhere in the petition do we find any allegation negativing this representation, alleged to have been made by the landlord. In so far as the petition reveals, this representation of the landlord concerning the condition of the premises at the time the tenant entered into possession and occupancy was entirely true. We must therefore eliminate any claim of negligence on the part of the landlord based upon that representation. We are therefore limited to the statement contained in subdivision 2; namely, that the landlord promised and agreed that he would keep the premises in good condition and repair.

Assuming, as we must, in the absence of a statement to the contrary, that the premises, including the handrail, were in good condition and repair at the time the tenant first entered into possession and occupancy, that the same became out of repair at a subsequent time, and that the tenant had brought no notice or complaint to the attention of the landlord concerning the handrail becoming out of repair, would the failure of the landlord to examine and inspect the handrail with a view to making necessary repairs constitute a violation of duty on his part, so as to subject him to a cause of action for damages for the.injuries sustained by the tenant? The petition states that the dangerous condition of the stairway and handrail was not apparent, and could not be discerned by'ordinary observation. This is set forth as an excuse for the tenant using the stairway. It must, however, follow that, if the dangerous condition was not apparent, and could not be discerned by the ordinary observation of tbe tenant, tbe landlord likewise could not have discerned and discovered it by ordinary observation. Tbe tenant, according to the allegations of tbe petition, was in exclusive control and occupancy of tbe storeroom and basement, and, sucb being the case, be had a better means of observing tbe condition of tbe stairway, including tbe handrail, than had the landlord, who was out of possession and control of tbe premises.

Negligence is a failure to observe ordinary care under tbe circumstances. In order to subject tbe landlord to a liability for tbe injuries sustained by tbe tenant tbe petition would bave to make it appear that there was a failure to exercise sucb ordinary care by tbe landlord. Not only does tbe petition fail to make sucb allegations, but, on tbe contrary, it negatives sucb allegation, for in tbe petition it is stated “that tbe dangerous condition of said stairway and handrail was not apparent and could not be discerned by ordinary observation.” If this is true, then it must follow that tbe landlord cannot be held to bave failed to exercise ordinary care, since tbe defective condition of tbe stairway could not be discerned by ordinary observation.

It is our opinion upon tbe face of tbe petition that tbe landlord bad a right to assume that the premises including tbe handrail remained in good repair. Especially so since tbe defect in tbe handrail was not apparent, and could not be discerned by ordinary observation, and no notice whatsoever of tbe true condition of this handrail was brought to tbe attention of tbe landlord by tbe tenant who was in exclusive control and possession of tbe premises.

We find no error in the judgment of the common pleas court.

Judgment affirmed.

Vickery, P. J., and Sullivan, J., concur.  