
    The Realty Bond & Mortgage Co. v. High et al., d. b. a. The Art Window Shade Co.
    
      (Decided December 22, 1930.)
    
      Messrs. Davis & Young, for plaintiff in error.
    
      Mr. J. DeKaiser and Mr. M. G. Harrison, for defendants in error.
   Vickery, P. J.

This cause comes into this court on a petition in error to the common pleas court of Cuyahoga county.

In the court below, the plaintiff in error and one of the defendants in error, Morris Jaffee, doing business as the Art Window Shade Company, were defendants, and the defendant in error, Joseph High, was plaintiff, and as such plaintiff he brought an action to recover damages, resulting, I believe, in the loss of an eye, by reason, as it is alleged, of the negligence of the owner of the building, an apartment house situated in the city of Lorain, Ohio, and of the window shade company which installed the window shades in said apartment, one of which fell from its brackets and struck the plaintiff in the eye, which caused loss of the eye.

In the trial below, the plaintiff recovered against the owner of the building, but the court, on motion, directed the jury to return a verdict in favor of the defendant Morris Jaffee, doing business as the Art Window Shade Company, to which ruling of the court exception was taken.

The owner of the building, the Realty Bond & Mortgage Company, prosecuted error against both his codefendant, Jaffee, and the plaintiff below.

The questions before this court are: Was the judgment against the owner of the building a valid judgment, and should it be sustained, or was there error in the record which would warrant its reversal? and Was the court right in directing a verdict in favor of Jaffee?

We have gone over this record, heard the argument of counsel, and familiarized ourselves with the briefs, and have come to the conclusion that the judgment of the court below must be reversed for error in the charge of the court and for error in directing a verdict in favor of Jaffee. The charge to which exception is taken is as follows:

“If you find by a preponderance of the evidence in this case that the defendant, The Realty Bond and Mortgage Company, on May 25,1928, was in possession and control of said building known as The Lo-rain Overlook Apartment Building, in the City of Lorain, Ohio, and particularly of Suite 413 of that building') and that the plaintiff was engaged on that date in the work of installation under a contract with said defendant, then I say to you that such defendant was under a legal duty to exercise ordinary care for the safety of the plaintiff in protecting him against any dangerous and defective condition of said building and its fixtures and fittings; and if you find further, by like proof, that the defendant failed to exercise such care for the safety of the plaintiff, it was guilty of negligence. ’ ’

The complaint about this charge and the fault we find with it is that it throws an absolute duty upon the owner of the building. It really makes the owner of the building liable, whether he had knowledge of the defect of the manner in which the shade was put up, or whether by the exercise of ordinary care he should have known. It makes him liable irrespective of knowledge, or irrespective of the fact that he could not have learned without extraordinary care.

It seems from the evidence that the roller on which this shade was placed was shorter by three-eighths of an inch than it should have been, according to where the brackets were placed, and that, when the plaintiff, who was employed by the owner to put in window screens, was tapping the wall to cut in the numbers bn the screens, this window shade became dislodged from its brackets and fell and struck him in the eye, as above outlined.

Now the owner of the building hired a window shade company to put up these brackets and shades, and there is nothing in the record to show that there was anything that would attract the attention, of the owner whatever to the manner in which this shade was put up; and there is nothing in the record to show that this shade had fallen before, or that the owner had any knowledge or means of knowing of its condition. It probably had operated all right, and not until this wall was tapped did it fall, so far as the record is concerned.

Now this takes away the possibility of this being a “res ipsa” case, and the suit is not planted upon that theory at all. It seems to us if anybody was liable in this case, it would have been the independent contractor, the shade company, that is, Jaffee, who put the shades in. There does not seem to be in this record any negligence proven against the owner other than the mere falling of the shade when the wall was tapped for the purpose of numbering the screen.

So under the evidence as it appears in this case the charge of the court was erroneous, and the error was prejudicial, as already pointed out, in that it made the owner responsible for the condition of the shade, which he did not put in, and for its insecure position, of which he apparently had no knowledge. We think that this was so erroneous that plaintiff in error was prevented from having a fair trial.

The judgment will therefore be reversed for error in the charge and for error of the court in directing a verdict in favor of the window shade company, and the cause will be remanded to the common pleas court for a new trial.

Judgment reversed and cause remanded.

Levine and Weygandt, JJ., concur.  