
    Kucera v. Grigsby.
    
      Negligence—Realty owner liable for injuries to servants of independent contractor—“Ordinary care” is “reasonable care”—Owner not liable if property used in unusual and unexpected manner—Tinner injured in using insecure window frame instead of ladder.
    
    1. Owner of realty is not only liable for personal injuries to independent contractor working on his premises, but to servants of independent contractor, and is' liable for exercise of ordinary care to all persons using his property in proper and legitimate way.
    2. Exercise of “ordinary care” is exercise of “reasonable care.”
    3. Owner is not liable for injuries to employee of independent contractor working on his premises, resulting from unusual and unexpected use of his property contrary to its purpose, there being no duty on owner to exercise ordinary care in such case.
    4. Where employee of independent contractor, engaged in constructing gutter on house, was injured when he clutched insecure window frame which he was using instead of ladder, owner was not liable for injuries resulting from such unusual use of his property.
    (Decided January 24, 1927.)
    
      Error: Court of Appeals for Cuyahoga county.
    
      Messrs. Payer, Winch, Mmshall & Karch, for plaintiff in error.
    
      Mr. 8. J. Deutsch, for defendant in error.
   Sullivan, J.

The question to be decided in this action is whether the court of common pleas of Cuyahoga county committed prejudicial error in sustaining a motion of the defendant, Grigsby, made at the close of plaintiff’s case, to direct a verdict for the defendant, and the basis of the court’s holding was that under the record there was no duty in the premises owing by the defendant, the owner of a house and lot, to the plaintiff, who, as the employee of an independent contractor, was engaged as a tinner in the repair or construction of a gutter immediately under a dormer window, not yet fully completed, the frame of which was left insecurely fastened until the carpenter should, at the proper time, permanently fasten it as a component part of the building.

It is argued by counsel for plaintiff in error that the authority of Thompson on Negligence, Section 979, is applicable to the case at bar. As a general proposition the citation is founded on established legal principles, but we do not think that the authority applies to the facts in the case at bar at the time the motion to direct a verdict for the defendant was granted. An owner of real estate is not only liable to an independent contractor, but to the servants and employees of the independent contractor, at work upon the premises, and he is held liable for the exercise of ordinary care to all persons using Ms property in a proper and legitimate way.

In the ease at bar the injury resulted from an unusual, if not an unnecessary, use of plaintiff’s property, to wit, the insecure window frame located above the gutter, which plaintiff was using instead of a ladder in the performance of his work, when, in the absence of the ladder or other convenience, it became necessary, in order to sustain his equilibrium while standing under the gutter on the window, to clutch the insecure window frame, and, in a sense, subject it to a use for which it was not originally intended, and which placed it under a greater strain than it would have been called upon to meet for its legitimate and ordinary uses.

The real question is not whether the owner of the real estate is liable to the employee and servant of an independent contractor, invited upon his property to perform certain labor, but whether he is liable for any injuries resulting to such servant or employee, where the proximate cause of the injury is the use of plaintiff’s property in such a manner as does violence to its nature, purpose, and intent. Such a situation bears no relation to the duty of the owner to exercise ordinary care. The exercise of ordinary care is the exercise of reasonable care, and to impose the responsibility upon the owner of property of being responsible for injuries resulting from unusual and unexpected uses of his property, contrary to its purpose and design, would not be within the domain of reason, and it is only within that province that the responsibility of ordinary care is confined.

In order to perform his duties, there was no need of plaintiff to call into requisition the insecure window frame in any wise. It was not an instrumentality connected with the performance of his duty. Had his contract been to paint the insecure window frame, another view might be taken of the error charged, because then it would not be unreasonable for the owner to anticipate that in order to paint the window frame it would become necessary to take hold of it, and that, if in so doing it became by reason of its insecurity the proximate cause of an injury, a recovery might be had. However, there is no such connection between the work of plaintiff in the case at bar and the window frame.

The weight of authority, we think, bears out our view of the question under discussion. We cite some of the authorities, as follows: Timmons v. Central Ohio Rd. Co., 6 Ohio St., 105; Carroll v. Union Ry. of N. Y. City, 52 Misc. Rep., 163, 101 N. Y. S., 745; Ahern v. Hildreth, 183 Mass., 296, 67 N. E., 328.

Holding these views, we find no error in the judgment of the court below, and the same is hereby affirmed.

Judgment affirmed.

Levine, P. J., concurs.

Vickery, J., not participating.  