
    Stellar v. Sclarenco.
    (Decided May 23, 1933.)
    O. G. EVERBACH and ISAAC HERMAN for appellant.
    ROBERT J. HAGAN,. LORAINE MIX and JOHN B. BRACHEY for appellee.
   Opinion op the Cotjet by

Judge Ratliff

Reversing-

The appellant, Annie Stellar, was the owner of a. tenement house on Market street in the city of Louisville, Ky. It was a three-story building, the first floor-contained a store and two rooms in the rear, which were-rented to one tenant. The second and third floors were used for living apartments and rented to various other-tenants. A stairway leading from the street to the second floor was the usual means of ingress and egress. There was another stairway in the rear of the building leading from an open back porch to the ground for the purpose of reaching the toilet in the back yard which, was used by all the tenants in common.

In the' late afternoon of July 20, 1931, the appellee, who was engaged in the business of selling oil and gas, called on a tenant who occupied the second floor of the-building, for the purpose of collecting a bill. The tenant whom he desired to see was absent at the time, and while waiting for her to return, it became necessary for him to go to the toilet. He asked a man in the building who was a boarder of the tenant on whom he was-calling, how to find the toilet and the man directed him to the back stairway which led to the back yard to the toilet. According to the testimony of the appellee, there was no light on the stairway and it was very dark. The-stairway was winding and the treads narrow at the end. next to the banister, and because of the darkness and the manner of construction of the stairway, he fell down the stairs and sustained certain injuries. Thereafter ie brought this suit against appellant for the recovery ■of damages for bis alleged injuries. Tbe issues were .made up and a trial was bad and resulted in a verdict and judgment in favor of appellee in tbe sum of $1,165. Motion and grounds for a new trial were filed wbicb were overruled. Tbis appeal results. A number of •alleged errors are assigned and urged in brief for appellant as grounds for reversal but it will not become ■.necessary to consider all of them. Tbe first complaint, •and tbe one most earnestly stressed in brief for appellant, is that tbe court erred in overruling her motion ■for a directed verdict in her favor, made at the close of •the testimony.

It is insisted for appellant that appellee, according 'to bis own testimony, was a mere licensee in bis use of ‘the rear stairway, which was not tbe usual mode of ingress and egress to tbe building and apartments therein, ■and that appellant owed him no duty of care except to refrain from willful acts of injury. In support of tbis -contention, appellant assigns a number of cases decided by tbis court and also foreign cases of similar holdings.

On tbe other band it is insisted for appellee that .bis right of action existed under the Statutory Tenement Law of Kentucky, relating to tenement bouses in cities of first class, as set out in tbe Kentucky Statutes, secs. 3037g-2, subsecs. 1 and 2, 3037g-40, and 3037g-41, and in support thereof are cited tbe cases of Mullins v. Nordlow, 170 Ky. 169, 185 S. W. 825; Howard’s Adm’r v. Hunter, 126 Ky. 685, 104 S. W. 723, 31 Ky. Law Rep. 1092; Clark’s Adm’r v. Louisville & N. R. Co., 101 Ky. 34, 39 S. W. 840, 18 Ky. Law Rep. 1082, 36 L. R. A. 123; Interstate Coal Co. v. Baxavenie, 144 Ky. 172, 137 S. W. 859; Home Realty Co. v. Carius, 189 Ky. 230, 224 S. W. 751; Offutt v. O’Leary, 204 Ky. 726, 265 S. W. 296; Cohen v. White, 206 Ky. 209, 266 S. W. 1078; Dodson v. Herndon, 147 Ky. 181, 143 S. W. 1011.

Upon careful examination of these cases we find that they deal with questions between landlord and tenant and other conditions not analogous to tbe instant case, except tbe case of Offutt v. O’Leary, supra, which is favorable to tbe appellant. In tbis case, Offutt, who “was an insurance agent, entered tbe premises to see one of tbe tenants thereon for tbe purpose of collecting in.surance premiums. In tbe late afternoon near dark be was making tbe usual trip and found tbe path leading to the premises covered with, water. In avoiding stepping in the water he stepped on a cellar door and proceeded on his way to the house, and after collecting the-premiums from the tenant, he endeavored to return in the same way. The hinge on the cellar door had rotted, and as he stepped upon the center of the door, it gave-way and he fell to the cellar steps below and broke his. arm. In a snit for the injuries thus sustained he recovered in the lower court, from which an appeal was-prosecuted to this court. It was held by this court that he was not entitled to recover for the injuries received, under the circumstances. Said the court:

“Unquestionably, under the facts stated, it; was appellant’s [landlord] duty to use reasonable care to have and maintain the path in a safe condition for the use of the tenants occupying the: building, and also for the use of those visiting them on business, or for pleasure. 16 E. C. L. pp. 1072, 1073; Dodson v. Herndon, 147 Ky. 183, 143 S. W. 1011; Hess v. Hinkson’s Adm’r, 96 S. W. 436, 29 Ky. Law Rep. 762; Miles v. Tracey, 89 S. W. 1128, 28 Ky. Law Rep. 621, 4 L. R. A. (N. S.) 1142; Baker v. Best, 107 S. W. 1192, 33 Ky. Law Rep. 1. It is equally clear that the liability of the landlord, does not extend to injuries occasioned by defects in. the portions of the premises not intended to be-used as an entrance, exit, or passageway. 16 R. C. L. p. 1074; Barry v. Cemetery Ass’n, 211 Mo.. 105, 109 S. W. 559, 124 Am. St. Rep. 773; Mazey v. Loveland, 133 Minn. 210, 158 N. W. 44, L. R. A.. 1916F, 279.”

The court further said that while the conditions of' the path rendered ingress and egress difficult and for’ this the tenants may have complained to the landlord,, but this did not authorize Offutt to make another route-, of his own and when he did so he became a mere licensee to whom the landlord owed no .duty except to refrain from willful and wanton negligence. Citing-Indian Refining Co. v. Mobley, 134 Ky. 822, 121 S. W. 657, 24 L. R. A. (N. S.) 497; Cumming’s Adm’x v. Paducah Grain & Elev. Co., 190 Ky. 70, 226 S. W. 345.

In the case of Branham’s Adm’r v. Buckley, 158 Ky. 848, 166 S. W. 618, 619, Ann. Cas. 1915D, 861, Bran-ham came upon the premises for the purpose of having corn ground into meal, and while in the mill waiting; for it to be ground, lie went into the boiler room for the purpose of warming himself and while there, the boiler exploded and threw hot water on him which resulted in his death. It was held that no recovery could be had for the injury and death of Branham, upon the theory that his business at the mill did not require him to be •at the place which he was injured. Said the court:

“The owner or occupant of premises, who induces others to come thereon by invitation* express or implied, owes them the duty of using reasonable or ordinary care to keep the premises in a safe condition; but he is not an insurer of the safety of such persons.-’

Very obviously the instant case falls within the rule ■of the cases supra. Appellee did not receive his injury by the use of the passway provided for the purpose of ingress and egress. He was using a back stairway which led to the back portions of the premises which was not used as a mode of ingress or egress, and he thereby became a licensee to whom the landlord owed 'no duty except to refrain from willful and wanton negli.gence. Cases supra.

Appellee testified that the stairway was dark and Tie had not theretofore used it. In his voluntary use of this stairway, in the circumstances, he thereby assumed the risks incident thereto. Bridgford v. Stewart Dry Goods Co., 191 Ky. 557, 231 S. W. 22. It follows that the court erred in failing to sustain appellant’s motion for directed verdict.

As the case has tó be reversed for the reasons in■dicated, it is not necessary to pass upon other questions ■raised in the briefs.

The judgment is reversed and remanded for pro■ceedings consistent herewith.  