
    Foti v. Lewis, Admr.
    (Decided January 9, 1925.)
    
      
      Messrs. Staley & Trunko, for plaintiff in error.
    
      Messsrs. Benner, Harter, Walker & Watters, for defendant in error.
   Washburn, J.

This was an action to recover damages for the wrongful death of a five-year-old child.

The child’s parents were tenants of the plaintiff in error, living in one of his three houses on one lot. Near to one house there was a wall, which the landlord knew for a long time was in such condition as to be liable to fall over at any time. The child, with other companions of about his age, was playing marbles by the side of said wall when it fell and killed said child.

The. wall was close to one of the houses, but not to the house in which the child lived, but said child and other children, as well as the tenants in the three houses, were in the habit of going past said wall in going to and from their houses, and the children were in the habit of playing near said wall and any other place upon said lot. There was, however, another,walk leading directly to the house in which said child lived, which was also used in going to and from said house.

Each house was occupied by two families, and there were no written leases with any of the tenants, their occupancy being from month to month, and the landlord acknowledged that he had control of the wall, which he had arranged to have repaired months before the accident. He also acknowledged that a short time before the accident the tenant in the Rouse closest to tRe wall complained to Rim about tRe condition of tRe wall, and, with Ris consent, moved out because of fear of being injured by tRe. falling of tRe wall, tRe landlord Raving full knowledge of tRe reason for so moving and consenting thereto.

TRe fair inference to be drawn from the landlord’s testimony, and the arrangement and condition and use of the premises, is that the walks and passageways to the Rouses were not rented to any particular tenant, but were designed to be, and were, used in common, and remained under the care and control of the landlord; and no one of the tenants Rad the right, or was obligated, to repair them, that right and obligation being the landlord’s.

> TRe important question in this case, which to a large extent forms the basis of the claim of the plaintiff in error, is that the five-year-old boy who was killed was a trespasser at the time and place where Re was killed, to whom the plaintiff in error owed no duty. I¡ ¡j -fj

We Rave given to the evidence in this case, as disclosed by the record, a very careful consideration, and Rave viewed the premises, and we are clearly of the opinion that under the circumstances here presented, the boy was not a trespasser; that Re Rad a right to be where Re was at the time of the, accident; that plaintiff in error, under all the circumstances, owed Rim a duty to see that the passageway along the said wall was maintained in a reasonably safe condition; and that the liability of the plaintiff in error did not necessarily depend upon Ris being guilty of wanton and willful negligence.

We are of the opinion, however, that there was evidence strongly tending to prove that the conduct of the landlord in this case amounted to wanton and willful negligence, and it may be that under the charge of the court the jury found the landlord liable because of his wanton and willful negligence.

But, regardless of that phase of the case, the record clearly shows by the admissions of the plaintiff in error that he failed to use ordinary care under the circumstances, and, having found that he owed the boy the duty to use ordinary care in reference to the wall that fell on the boy and caused his death, we find that there was no error in the court’s ruling in refusing to direct a verdict for the plaintiff in error.

It is recognized as a general rule that where a landlord reserves to himself, for the common use of his tenants, the control of a portion of the premises, such as stairways and halls and walks, he owes the duty to exercise ordinary care and prudence to the end that such parts shall be maintained in a reasonably safe condition. The circumstances were not such in this case as to make applicable the principles of law announced in the several cases cited by the plaintiff in error.

We further find that there was no prejudicial error in the rulings of the court in reference to the admission and rejection of evidence, and that, under the circumstances we have indicated, the charge of the court was as favorable to the plaintiff in error as he was entitled to receive.

Finding no prejudicial error, the judgment is affirmed.

Judgment affirmed.

Funk, P. J., and Pardee, J., concur.  