
    Tyler v. The Vistula Realty Co.
    
      (Decided January 14, 1929.)
    
      Mr. Sol D. Tucker, for plaintiff in error.
    
      Messrs. Marshall, Melhorn, Marlar & Martin, for defendant in error.
   Richards, J.

This action was commenced by Carrie O. Tyler for the purpose of recovering damages for personal injuries resulting from her slipping and falling on a public porch or passageway. After the opening statement of her counsel, a judgment was on motion directed for the defendant on the pleadings and the opening statement.

The petition charges that the defendant was, at the time, and had been for a long time, owner and lessor of a certain hotel in the city of Toledo known as the Patterson Hotel, and that rooms therein were rented to the general public. Plaintiff avers that on the occasion in question, to wit: July 10, 1927, and for some time prior thereto, she was a guest and tenant at said hotel, and occupied a room therein in the rear part of the building with a door leading from the room onto a public porch and passageway, oil which, were rubbish receptacles, refrigerators, and clothes lines of the various tenants. She further avers that leading from this public porch and public passageway to the public porches and public passageways below and above were public stairways for the common use of guests, and tenants, and the public. She avers that the defendant negligently and unlawfully allowed the public porches and stairways and passageways to be unlighted after dark, and that one night at about 11 o’clock she had occasion to go upon the public porch and passageway near the stairway, in the performance of her household duties, and on account of the darkness she was unable to see any objects which were, or might be, upon the floor, and that, while proceeding about her duties, without any negligence upon her part, she stepped upon some article on the public porch and passageway which caused her to be thrown violently and severely injured.

The opening statement of counsel is to the effect that he expected the evidence would prove the allegations of the petition, and recites with detail the averments thereof, and further contains the statement that “while she proceeded from her door on the porch she felt something under her foot. Whether she stepped on something or whether it was a raise in the floor, or what it was, she is not able to say.”

The petition sets forth the terms of Section 405 of an ordinance in force at the time in the city of Toledo. This ordinance, so far as pertinent to the case, reads as follows: “All public halls, stairways, corridors, and toilets in public buildings and hotels and tenement buildings, flats, and apartments, having two or more apartments, shall be provided by the owner, or lessor thereof, with artificial light, properly located to amply light the same, and said light shall be kept burning during the full period of darkness.” '

The ordinance also provides a penalty upon conviction for violating its provisions.

The opening statement of counsel shows that the back porches and stairways were public and maintained for the general use of all the tenants of the building, and for the general public in the making of deliveries, and for the collecting of garbage and rubbish, and that this public porch and passageway was connected by a stairway leading to the floor below, and to another stairway leading to the floor above.

It is contended that the ordinance does not apply to the situation pleaded and disclosed in the opening statement, because the public porch, passageway, or corridor was not in the building. We cannot find that such contention is justified. The ordinance was enacted for the safety of the general public and of tenants occupying the building, and must be construed to include such a public passageway and porch or corridor in a hotel or apartment house, as here described. So far, therefore, as the negligence of the defendant is concerned, the direction of the verdict was unwarranted.

It is contended, however, that the petition and the opening statement of counsel raise a presumption of contributory negligence on the part of the plaintiff, directly resulting in her own injury. On a motion for a directed verdict, on the opening statement of counsel for plaintiff, the statement must be construed most favorably to tbe plaintiff. The petition charges that without her fault she “stepped upon some article” which caused her to be thrown, while the opening statement of counsel is to the effect that she was unable to determine whether it .was a raise in the floor or what it was. This would justify the introduction of evidence to show that she stepped on some substance that had been dropped on the floor by some other tenant or person, shortly before her injury, and that she had no knowledge of it. The statement, in the opinion of this court, does not show facts which raise a presumption of her negligence and bar her recovery. In this respect the case differs from McKinley v. Niederst, decided by the Supreme Court March 21, 1928, 118 Ohio St., 334, 160 N. E., 850, for in that case the plaintiff fell down a stairway, of the existence of which she had full knowledge, and there was no ordinance requiring the same to be lighted. If the stairway in that case had been constructed during the day while she was absent, and, on her return after dark, without knowledge of its existence, and while it was unlighted, she had fallen down it, the lighting thereof being required by ordinance, there would be some similarity in the cases.

It is well known that the right to direct a verdict on the opening statement of counsel should be exercised with great caution and only when it clearly appears therefrom that the plaintiff is not entitled to recover. Cornell v. Morrison, 87 Ohio St., 215, 100 N. E., 817.

For the reasons given the judgment will be reversed, and the cause remanded for new trial.

Judgment reversed.

Williams and Lloyd, JJ., concur.  