
    McKinley v. Niderst.
    
      (Decided September 19, 1927.)
    
      Messrs. McConnell, Blackmore & Cory, for plaintiff in error.
    
      Mr. Paul Howland, for defendant in error.
   Levine, J.

The parties are in the same relation as they were in the trial court. The plaintiff, Laura McKinley, filed suit against the defendant, Mary Niderst, for personal injuries alleged to have been sustained by her because of the negligence of the defendant in failing to keep a hallway, then under the supervision and control of the defendant, properly lighted. It- appears that the defendant owns an apartment house two stories high, with two suites on the first floor and two on the second. Entering the apartment from the street, there is a vestibule, and six steps lead from the vestibule to a landing, from which the two first floor apartments are entered. A janitor and janitress in the employ of the defendant occupy the rooms in the basement. They clean and maintain the hallways and landings. It appears from the evidence that the lights in the hallways, which are controlled by a clocjk, are also attended to by the janitor, but there is no allegation in the petition setting forth that fact.

On the morning of the accident, at 6:30 o’clock, the plaintiff came out of her apartment to the landing, and then discovered that the lights in the hallway were not lighted. She started to go down the flight of six steps to the street level, but, unable to see the top step because of darkness, she fell, and was thereby injured. At the conclusion of the plaintiff’s case, the court sustained a motion by defendant for a directed verdict.

The ground given by the court was, in substance, that by the plaintiff’s own statement she was guilty of contributory negligence in 'attempting to go downstairs when she was unable to see where she was going. Considerable discussion was devoted in argument to the question whether the court can say, in this case, as a matter of law, that the plaintiff was guilty of contributory negligence. Generally speaking, the attending circumstances must be considered in determining whether the plaintiff was guilty of negligent conduct which proximately contributed to the cause of the injury. We find it, however, unnecessary to determine that question in the case at bar, although we are inclined to the opinion that the question of contributory negligence in this case was a question of fact and should have been submitted to the jury.

There appears in this ease a more important element which in our opinion justifies the action of the trial court in sustaining the motion to direct a verdict, even though it be conceded that the reasoning given by the court was incorrect. At the commencement of the trial the defendant objected to the introduction of any evidence on the ground that the petition failed to set forth a cause of action, which the trial court overruled. We have examined the petition filed in this case, and, while there are other allegations of negligence, it must be conceded that the only ground relied on is the failure of the defendant to keep the hallways lighted.

Negligence is a breach of duty owing from one person to another. At common law, the landlord was under no duty to keep the hallways lighted. Such duty, if it exists, must arise either by virtue of the provisions of the General Code or a city ordinance, none of which exist in the case at bar. Such duty may also arise by virtue of a contract between the parties, either express or implied. The petition pleads no such agreement between the parties, either express or implied.

It follows, therefore, in the absence of any duty resting upon the landlord to keep the hallways lighted, either by virtue of law or by virtue of contract, that he cannot be charged with negligence. It was clearly within the province of the trial court to sustain the motion to the introduction of any evidence made at the commencement of the trial. The action of the trial court in sustaining the motion for a directed verdict, if it has no other justification, rests securely upon the ground that the petition does not state a cause of action.

In view of the considerations herein expressed, we find no error in the record, and the judgment of the Common Pleas Court will be affirmed.

Judgment affirmed.

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