
    Lubin et al. v. Payne.
    (Decided July 3, 1933.)
    
      Mr. Henry E. Beebe, for plaintiffs in error.
    
      Mr. August A. Bendigs, Jr., and Mr. j. G. Be Fosset, for defendant in error.
   Hamilton, P. J.

This was a personal injury case, in which the defendant in error, George M. Payne, plaintiff below, secured a judgment on the ground that defendants were guilty of negligence proximately causing his injuries.

The essential facts are these: Payne was a tenant in the Biltmore Apartments on West Fourth street in the city of Cincinnati. Plaintiffs in error, Max D. and Esther Lubin, who were owners of the building, maintained a heating plant in the basement. To accommodate the operation of the furnace, a pit was maintained. Payne went into the basement to burn some papers in the furnace. In doing so, he stepped into the pit and received injuries which are the basis of .this action.

The negligence claimed is that the owners of the building failed to properly guard or light the furnace pit.

We have examined the record in the case to ascertain what duty the owners of the building owed Payne in the premises. The pit was not a place for the accommodation of the tenants of the building. Differentiating the facts in those cases where there were common passageways, stairways, or halls, the owners of the building in the instant case did not maintain the furnace for the purpose of burning papers. The evidence is that the refuse in the building was gathered up and disposed of by a janitor of the building. The only excuse Payne offered for going to the basement was that the janitor maintained a desk in the basement, where the tenants went to pay their rent. The furnace was in a different apartment in the basement. Payne had nothing to do with the operation of the furnace. By going to the furnace room he sought to accommodate himself in the destruction of some papers. He said he saw a glow of fire from the furnace door and thought it was the bottom of the furnace. The claim is that this defeats the rule applicable to “step in the darkness” cases.

It is not necessary to go into a discussion of “step in the darkness” cases.

What we have said shows that the owners of the building, plaintiffs in error here, owed no duty to Payne to guard or light the furnace pit. He entered the apartment at his own risk.

The judgment of the court of common pleas will be reversed, and final judgment for the plaintiffs in error will be entered here.

Judgment reversed and judgment for plaintiffs in error.

Cushing and Ross, JJ., concur.  