Opinion
Decided May 10, 1926.
Negligence — Landlord and tenant — Exercise of care in keeping aisle in safe condition — Stands and storage rooms leased to tradesmen and dealers — Questions for jury — Condition of aisle and proximate cause of injury to customer.
1. Where aisle in building operated by defendant, in which were located stands leased to dealers, was under defendant's control, it was duty of defendant to exercise ordinary care to keep aisle in reasonably safe condition for use of tenants and their customers.
2. In action for injuries to customer struck by truck being operated in aisle leased for stands in defendant's building and under its control, evidence as to wet condition of aisle preventing immediate stopping of truck required submission to jury of question whether aisle was in reasonably safe condition, and whether defendant exercised ordinary care to keep aisle in reasonably safe condition and whether defendants negligence, if any there was, was proximate cause of plaintiff's injury.
ERROR: Court of Appeals for Cuyahoga county.
Mr. David P. Bowden, for plaintiff in error.
Messrs. Dustin, McKeehan, Merrick, Arter Stewart, for defendant in error.
The sole question presented in this case is whether or not the court below erred in directing a verdict to be returned in favor of the defendant at the close of plaintiff's evidence, and in entering judgment thereon.
It appears from the evidence that the defendant is a storage company operating a building at the corner of Fourth street and Huron road in the city of Cleveland, in which were located stands and storage rooms which the company leased to tradesmen or dealers; the company retaining control over the aisles running between the stands. On or about January 8, 1924, the plaintiff went into the building of the defendant to make some purchases and when she was in one of the aisles in front of a stand and about to place in her shopping bag, which rested upon the floor, the purchases she had made, Irvin Sigel, an employe of Morris Lepon, was pushing a small four-wheel truck, loaded with fruits and nuts, to a stand outside the building, from a stockroom which ls located within the building, which was leased by Morris Lepon from the defendant company. While Irvin Sigel, in the performance of such duty, was pushing his truck along the aisle in which the plaintiff was, the truck struck her and caused the injury in question.
The general rule regulating the rights of the parties in this case is laid down in Davies, a Minor, v. Kelley, 112 Ohio St. 122, 146 N.E. 888, from which we quote the first proposition of the syllabus:
"If the owner of a house leases a portion of it, to which access is had by ways of halls, stairways, or other approaches, to be used by such tenant in common with the owner or tenants of the other portions of the premises, and retains the possession and control of such halls, stairways, or other approaches, it is his duty to exercise ordinary care to keep the same in a reasonably safe condition."
The aisle in which the transaction took place was under the control of the defendant, and it was the duty of the defendant to exercise ordinary care to keep the aisle in a reasonably safe condition for the use of its tenants and their customers.
There is evidence in the record tending to show that as the employe pushed his truck along, and approached the plaintiff from behind as she was stooping over to put her purchases in her shopping bag, he tried to stop in order not to hurt her, but that the truck slid on the floor about six inches and pulled him along with it; that he could not quite stop the truck and it hit her; that it was a snowy day outside and that the aisle was wet, sloppy, and muddy; that there were marks on the floor of the aisle where the truck slipped; that the young man, on previous occasions, had not had trouble in stopping the truck when it was loaded; that the defendant, at the time, had a man in its employ to keep the aisles free and clean; and that the aisles were commonly used for the purpose of trucking things. Such evidence having been adduced, it was the duty of the court to submit to the jury the question whether the aisle was not in a reasonably safe condition because of the fact that it was wet and muddy, and, if so, whether or not the defendant company had exercised ordinary care to keep the aisle in a reasonably safe condition in that respect, and whether or not the negligence of the defendant company, if such existed, was the direct and proximate cause of plaintiff's injury.
The court below erred in directing a verdict for the defendant. The judgment will therefore be reversed, and the cause remanded for a new trial.
Judgment reversed.
RICHARDS, P.J., and YOUNG, J., concur.
Judges of the Sixth Appellate District, sitting in place of LEVINE, P.J., SULLIVAN and VICKERY, JJ., of the Eighth Appellate District.