
    The R. K. O. Midwest Corp. v. Berling, a Minor.
    (Decided April 1, 1935.)
    
      
      Mr. John M. McCaslin, for plaintiff in error.
    
      Mr. Leo J. Brumleve, Jr., and Mr. Benjamin P. Pink, for defendant in error.
   Ross, P. J.

Judgment against the owner of a building was rendered for the plaintiff, Norbert Berling, a sixteen months old infant, who sued by his father and next friend to recover damages for injuries sustained when he was severely burned by coming in contact with an exposed pipe, full of steam, located in a room four by six feet, used as a dressing room by a tenant operating a photographic studio. Separate settlement was effected with the tenant. The jury was instructed to credit the amount of settlement upon the sum found due from the owner, and to return a verdict for the difference.

The owner, the R. K. O. Midwest Corporation, plaintiff in error here, partitioned the space selected by the tenant in the building according to the directions of the tenant. The pipe in question here was located in the corner of the small dressing room, the pipe being less than two inches in diameter and designed to carry steam to other parts of the premises. The steam was furnished by the owner; and the valves controlling its supply, its quantity, and its pressure, and consequent capacity for heat, were under the direct and exclusive control of the owner. The room containing the pipe was poorly lighted and was known to be so by the employees of the owner, which also furnished electric current and janitor service.

The following provisions appear among the Rules and Regulations incorporated in the lease:

“Heat will be furnished by the Lessor daily from 7:00 A. M. to 6:00 P. M. (Sundays and Holidays excepted) whenever between October 1st and May 1st, such heat shall, in the Lessor’s judgment, be required for the comfortable occupation and use of said premises.

“Rule 4. The Lessor shall furnish janitor service for said demised premises but any and all electric current used in the performance of janitor service, and also in making repairs and alterations in said premises during the term of this lease shall be at the expense of the lessee.

“No person shall be employed by the Lessee to do janitor work in said demised premises, and no person other than the janitors of said building, shall clean said premises unless the Lessor shall give its written consent thereto.

“Any person employed by the Lessee, with the Lessor’s consent as aforesaid, to do janitor work, shall, while in said building and outside of said demised premises, be subject to, and under the control and direction of the superintendent of said building (but not as agent or servant of said superintendent or of the Lessor).

“The Lessor may retain a pass key to the premises and be allowed admittance thereto at all times to examine said premises or to furnish such janitor service.

“Rule 5. The Lessor shall have the right to enter the demised premises at all reasonable hours for the purpose of exhibiting the same, and may place and keep on the windows and doors of said premises at any time within sixty days before the expiration of this lease, signs advertising the premises for rent.

“Rule 6. The Lessor shall have the right to enter the demised premises at all reasonable hours for the purpose of making any repairs, alterations, or additions which the Lessor shall deem necessary for the safety, preservation, or improvement of said premises or for the purpose of making repairs or alterations on the exterior of said building, and the Lessor shall be allowed to take all material into and upon said premises that may be required to make such repairs, improvements, and additions or any alterations for the benefit of the Lessee without in any way being deemed or held guilty of an eviction of the Lessee; and the rent stipulated to be paid shall in no wise abate while said repairs, alterations or additions are being-made; nor shall [Lessee] be entitled to maintain a setoff or counterclaim for damages against the Lessor by reason of Loss or interruption to the business of the Lessee because of the prosecution of any such work. All such repairs, decorations, alterations, additions and improvements shall be made during ordinary working hours, or if any such work is, at the request of the Lessee, to be done during any other hours, the Lessee shall pay for any extra cost occurring because of such request.”

The injuries complained of were received by plaintiff when his mother brought him to the studio for the purpose of having him photographed in the nude. He was then eight months old. She was directed by the tenant to the small dressing room. The only light in the room was on a wall opposite the pipe. It did not brilliantly illuminate the room. The mother undressed the plaintiff, placed him upon a chair, and turned to pick up his clothes. As she was doing this the plaintiff fell off the chair, against the pipe, and was severely burned. There was evidence that the heat in the pipe was in excess of that reasonably needed by the requirements of the premises. ' There was nothing except the heat from the pipe to indicate that it contained steam. There was no radiator in the room.

Under these circumstances, did a cause of action exist against the owner?

The responsibility of the owner of premises when out of possession and control is now clearly fixed by recent decisions of the Supreme Court of Ohio. In Berkowitz v. Winston, 128 Ohio St., 611, 193 N. E., 343, the third paragraph of the syllabus is:

“An owner of real estate, who has surrendered possession thereof to a lessee, is not liable to an employee of such lessee for personal injuries resulting from a defective condition of the premises, though he had promised the lessee to make repairs.”

At page 612 of the opinion it is stated:

“Where portions of a building are rented to several tenants who have the use of the halls, stairways, etc., in common, the landlord is held to be in control of such passageways and liable for injury resulting from his want of due care in maintaining same in a reasonably safe condition. That liability is based upon the owner’s continued control of such portion of his premises. There is no liability for tort without possession or control, and such possession or control cannot be predicated solely upon a promise to repair.”

Viewing the facts in the instant case, even in the light of such responsibility, there was in our opinion sufficient control reserved in the owner to support a claim of liability against it.

However, there is another view in which the owner would be liable. The owner and the tenant cooperated in creating a condition which any reasonably prudent-person must have known could cause injury. The anticipated use of the room, its ineffective lighting, the harmless appearance of the pipe, its potential capacity to severely burn, if contacted when full of steam, the probability that young children would be present in the room and come in contact with the pipe, were matters which a reasonably prudent person would have considered when the premises were leased to the tenant. They were all matters which the owner should have considered. Precaution should have been taken by it to prevent injury. Could it be said that if instead of the pipe the owner had installed in the same place, and under similar circumstances, a bare wire highly charged with electricity, furnished by the owner, the injury would not be reasonably sure to follow— that a reasonably prudent person would have transferred premises so equipped to a tenant? We think not.

The same result is reached by still another approach. We quote from the opinion in Coventry Leasehold Co. v. Welker, A3 Ohio App., 82, at page 85, 182 N. E., 688:

“It may be said that these two classes of cases overlap, that is, practically all nuisances have an element of negligence in them, and a negligence case may rise to the point where the thing complained of may be a nuisance. And the theory upon which a landlord may be held liable where premises are leased upon which a nuisance exists is in that the landlord created the nuisance and is presumed to have intended the continuance thereof, and is therefore liable for the natural consequences of his own act.

“It is said in a valuable note, listing many authorities, in 50 L. R. A. (N. S.), 288, that: ‘Where, at the time they are leased, the premises are or contain a nuisance, or an incipient nuisance which becomes active by the tenant’s ordinary use of the premises, the landlord is liable to third persons injured as a natural consequence thereof.’ The same rule is stated in 16 Ruling Case Law, 1076. Therein it is said: ‘It is the well settled rule that the landlord is properly chargeable with liability to a stranger where the cause of injury to the latter is a nuisance existing on the premises at the time of the demise. No person can create and maintain a nuisance upon his premises a.nd escape liability for the injury occasioned by it to third persons. Nor can a lessor so create a nuisance and then escape liability for the consequences by leasing the premises to a tenant.’

“We find that the courts of this state have considered the principle embodied in the last quoted sentence. The court in McIlvaine v. Wood, 2 Handy, 166, and in Shindelbeck v. Moon, 32 Ohio St., 264, 275, 30 Am. Rep., 584, recognized the rule, and it was applied in Edwards v. Rissler, 16 C. D., 428, affirmed without report in Rissler v. Edwards, 69 Ohio St., 572, 70 N. E., 1129.”

The petition may not charge the existence of a nuisance in such terms, but facts are alleged which certainly charge the existence of one. See, also, Section 359, Restatement of Law of Torts.

The refusal to give the following special charge is assigned as error:

‘ ‘ Ordinary care in the operation and maintenance of any facilities or installation, in the control of the owner of a building, only means such care as ordinarily prudent operators of similar buildings are accustomed to exercise with reference to the operation and control of such facilities or installation.”

The fallacy of this charge is shown when it is viewed in the light of Taugher et al., Partners, D. B. A. Taugher’s Drug Store, v. Ling, 127 Ohio St., 142, 187 N. E., 19.

Defendant’s special charge No. 8, as follows, was also refused:

“I charge you that if you should find that the defendant was negligent, but that the injuries to the plaintiff would not have occurred except for the act or acts of the plaintiff’s mother in placing the plaintiff in a position where he was injured, and that such act or acts of the mother could not have been foreseen by the exercise of ordinary care on the part of the defendant, then the act or acts of the mother would be regarded as the proximate or direct cause of the plaintiff’s injuries, and the negligence, if any, on the part of the defendant would be regarded as the remote cause, in which event the defendant would not be liable to the plaintiff. ’ ’

The defect in this charge is that the court is given the power to usurp the function of the jury in stating what is and what is not the proximate cause of the .injury. It is for the jury to say whether a given set of circumstances are or are not the proximate cause of consequent injury.

Our conclusion is that no error prejudicial to the plaintiff in error intervened, and the judgment of the Court of Common Pleas of Hamilton county is affirmed.

Judgment affirmed.

Matthews and Hamilton, JJ., concur.  