
    Roth et al. v. Trakas.
    (Decided March 24, 1930.)
    
      Messrs. Ragland, Dixon & Murphy, for plaintiffs in error.
    
      
      Mr. Max Bafalo, for defendant in error.
   Ross, J.

The defendant in error, Jennie Trakas, rented a room from the plaintiffs in error, Arthur S. Roth and Mary Roth, who were lessees of a tenement building, and was injured by falling down a stairway used in common by all the tenants in the building.

An ordinance of the city of Cincinnati, where the building was located, is as follows:

“In every tenement house an approved light shall be furnished and maintained by the owner in a public hallway and stairs, and such light shall be kept burning from sunset until 10:00 o’clock in the evening.”

At the time of the injury, shortly after sunset, as determined by the United States government officials, the lights for illumination of the stairs were unlighted.

For a long time prior to the renting of the room by defendant in error there had existed in one of the steps in the stairs a small crack unnoticed by the defendant in error previous to the incurring of the injury.

The defendant in error brought suit against the lessees and owners of the tenement building, alleging that the injuries received by her in falling down the stairs were due to the negligence of the lessees and owners in failing to repair the steps and in failing to comply with the ordinance requiring the stairway to be lighted. The owners, being nonresidents, were dismissed at the beginning of the trial, and the case proceeded against the lessees, who were alleged to be owners in the petition.

The defenses were a general denial and contributory negligence.

The trial resulted in a verdict for the plaintiff below.

It is claimed by the plaintiffs in error that their motion for an instructed verdict should have been granted, first, because there was no evidence that the premises were out of repair; second, because there was no evidence that the lessees knew of any dangerous condition existing, requiring repair; and, third, that the plaintiff below knew, or should have known, that the crack was in the step, and was guilty of contributory negligence in proceeding down a dark stairway, if it was dark, or in carelessly stepping upon the cracked step, if it was light enough to see it.

The evidence upon the charges of negligence of the landlord and contributory negligence of the tenant presented questions for the jury.

The case of McKinley v. Niederst, 118 Ohio St., 334, 160 N. E., 850, is not in point, for the court specifically found that there was no ordinance requiring the stairway to be artificially lighted, and, while the court upon the facts in that case held that the tenant was as a matter of law guilty of contributory negligence, it was upon the ground that the plaintiff attempted to pass down a stairway which was in “total darkness.” The facts are wholly dissimilar to those in the case at bar. Under the decision of the Supreme Court in the case of Davies, a Minor, v. Kelley, 112 Ohio St., 122, 146 N. E., 888, the syllabus reads:

“1. If the owner of a house leases a portion of it, to which access is had by way of halls, stairways or other approaches, to be used by such tenant in common with the owner or tenants of the other portions of the premises, and retains the possession and control of such halls, stairways or other approaches, it is his duty to exercise ordinary care to keep the same in a reasonably safe condition.
“2. Where a porch and stairway leading thereto are provided, maintained, and controlled by a landlord for the use of several tenants of his building, and are thus used, he is, in general, liable for any injuries arising from his neglect to keep the same in proper repair; such duty and liability extend not only to the tenant himself, but also to members of his family, employees, guests, and invitees.”

It was a question for the jury whether the duty as so defined had been performed by the landlord in the instant case.

A portion of the general charge of the court is criticized as not stating this rule correctly, in that the landlord under the charge is required to use reasonable care and diligence to keep the stairway m repair instead of “in a reasonably safe condition.” The portion of the charge is as follows:

“It is the duty of a landlord, in which there is a common stairway used by tenants jointly, which remains under the control of the landlord or his agent, to use reasonable care and diligence in keeping said stairway in repair * * *.”

The portion of the general charge immediately following that above quoted reads:

“And if, by their failure to use ordinary care and diligence, the stairway did become out of repair and a party was injured as a proximate result thereof, without having been guilty of negligence on her part which directly contributed to any extent to the injuries, if any she sustained, then she would be entitled to recover; otherwise she would not.”

Taking the whole charge as given, the plaintiffs in error were not prejudiced thereby, for, if the stairway was out of repair, and this was the proximate cause of the injuries, the stairway could not be said to be in a “reasonably safe condition.”

On the other branch of the case it was a question for the jury to determine whether the failure of the landlord to comply with the city ordinance requiring lighting, constituting negligence, was the proximate cause of the injuries.

The following special charge was given and is claimed to be erroneous:

“There was no legal duty on the part of the plaintiff to ask that the lights be turned on in the public hallway of a tenement building after sunset and before 10 o’clock in the evening.”

The charge is correct. There was no legal duty upon the tenant to ask for lights, although her failure to so ask might be considered by the jury in comparing the conduct of the tenant with that of a reasonably prudent person under the circumstances.

Other matters of error are urged, none of which we consider prejudicial to the rights of the plaintiffs in error.

Judgment affirmed.

Hamilton, J., concurs.  