Opinion
No. 21688
Decided November 27, 1929.
Landlord and tenant — Negligence — Damages against landlord for creating and allowing fire hazard on premises — Evidence — Proof of previous fires competent, when.
In an action for damages against an owner of premises for negligently creating and allowing to exist a fire hazard thereon, as a result of which a fire is claimed to have occurred, causing the loss of property by tenants of such owner, proof of the occurrence of previous fires at the same place and under substantially the same conditions as those involved in the action, not too remote in time, which are reported to such owner, is competent, not as showing an independent act of negligence but for the purpose of showing knowledge on the part of such owner of the existence of such fire hazard and tending to show the common cause of such fires as due to a dangerous condition of such premises.
ERROR to the Court of Appeals of Cuyahoga county.
This is an action to reverse the Court of Appeals of Cuyahoga county. The amended petition, filed in the court of common pleas by the plaintiffs below, David H. Powell and Mary C. Powell, discloses that they were husband and wife, residing in an apartment house owned by the plaintiffs in error, defendants below, on Carnegie avenue in the city of Cleveland; that a fire occurred in said apartment house, as a result of which they lost a considerable amount of personal property.
The fire in question originated in a shaft of wooden construction, which had formerly been used as a dumb waiter, running from the basement to the apartments on the upper floors of said building. At the time in question said chute was being used as a receptacle in which waste paper and other combustible matter had been placed, as a result of which the plaintiffs below claim a fire occurred and resulted in the destruction of their property. The acts of negligence are set forth as follows:
"1. The defendants were negligent in using said frame lined shaft for the deposit, accumulation or storage of waste paper and other combustible waste contrary to the order of the Assistant Fire Warden of the city of Cleveland;
"2. The defendants were negligent in using said frame lined shaft for the deposit, accumulation or storage of waste paper or other combustible waste when they knew, or in the exercise of ordinary care should have known, that said frame shaft was unfit for such use and constituted a dangerous and unlawful fire hazard.
"3. The defendants were negligent in not maintaining said accumulation of waste paper or other combustible material in such manner as to keep it from igniting.
"4. The defendants were negligent in causing a fire in said shaft when they knew, or in the exercise of ordinary care should have known, that the gas pipes in said apartment building were in close proximity to said shaft and would explode by reason of heat from a fire in the said shaft.
"5. The defendants were negligent in letting gas pipes remain close to said shaft when they knew, or in the exercise of ordinary care should have known, that to do so constituted a dangerous and unlawful fire hazard.
"6. The defendants were negligent in not remodeling or constructing said shaft with fireproof material, in conformance with the requirements of the Municipal Code of the city of Cleveland.
"7. The defendants were careless and negligent in not remodeling or constructing said shaft with fireproof material such as may be necessary to render it safe for the deposit or accumulation of waste paper or other combustible waste.
"8. The defendants were careless and negligent in not closing said shaft when they knew, or in the exercise of ordinary care should have known, that the shaft had the appearance of an incinerator, and that it would be used for the accumulation of waste paper and other combustible paper or waste."
The section of the municipal code of Cleveland as to dumb waiters is set forth, as well as a detailed statement of the personal property lost and its value, which they claim to have totalled the sum of $5,000, for which amount they ask judgment.
The amended answer, filed by Ray Jaffee and Libby Glazer, admits the ownership of the property, the occurrence of the fire, and the destruction of certain property belonging to the plaintiffs; but of the amount the defendants aver they have no knowledge. They also admit the section of the municipal code set forth in the amended petition. Further answering, the defendants deny generally every allegation in the petition which they did not admit, and say that each and every fact and condition upon which the plaintiffs based their cause of action of alleged negligence was well known to the plaintiffs, and open and obvious during the entire time that they occupied the premises, and that they therefore assumed any risk or danger which might arise therefrom.
A reply to this amended answer was filed. The plaintiffs denied that they had knowledge of these negligent acts of the owners of the building, and that such were open and obvious during the entire time that they occupied the premises, but aver that this frame-lined shaft was under the exclusive supervision and control of the, defendants below, their agents, servants and employees, and that the plaintiffs had no access, supervision, or control over the same in any manner; and, with an averment of the violation of the city ordinances by the defendants below, plaintiffs prayed that the answer of the defendants be dismissed, and that the relief sought by them in the amended petition be granted.
The matter came on for trial before a jury, and at the close of the plaintiffs' case a motion was made by the defendants below for a directed verdict, upon the ground of failure of proof, and upon the further ground that "in this relationship of landlord and tenant, they cannot recover for a condition here that they knew all about for these two years." Upon consideration of this motion, the trial court directed a verdict for the defendants. Motion for new trial was overruled, and judgment rendered on the verdict. Error was prosecuted to the Court of Appeals, which court reversed the judgment of the court of common pleas, and the matter is now before this court for review.
Mr. Robert L. Carr, for plaintiffs in error.
Mr. M.S. Farmer, Jr., for defendants in error.
The journal entry of the Court of Appeals in this case recites: "The judgment of the said court of common pleas is reversed, for error in the exclusion of evidence; no other error appearing in the record, and this cause is remanded to said court of common pleas for further proceedings."
The evidence excluded related to the attempt of the plaintiffs below to show the fact of other fires having occurred in this wooden chute or dumb waiter, of which fact the plaintiffs claimed the defendants had knowledge.
It is to be noted that it was the creation and maintenance of a fire hazard in this building, in violation of the ordinances of the city of Cleveland, after a direction by the city officials to discontinue such hazard, that was the chief element of the claimed negligence upon which the action was brought; so that proof of knowledge of a dangerous condition likely to cause a fire, and the continuance of such hazard after knowledge thereof, was an important part of the plaintiffs' case — not to prove actionable negligence upon the part of the owners at the time of the fire, but for the purpose of proving the existence of a fire hazard, the knowledge on the part of such owners of the existence of the same, and their violation of the city ordinances after the notification by the public authorities to discontinue such use of the shaft in question.
"The violation of a municipal ordinance passed in the proper exercise of the police power in the interest of the public safety, and not in conflict with general laws, is negligence per se." Schell v. Du Bois, Admr., 94 Ohio St. 93, 113 N.E. 664, L.R.A., 1917A, 710.
As bearing upon the question of proof of knowledge of a defective or dangerous condition, as a result of which injury is received by another, the following may be cited: "In an action by an employee against his employer for damages resulting from an injury received in operating a machine, caused by its defective construction, the defect being charged to the negligence of the employer, it is competent to prove that, on a former occasion, while it was being operated by another, the machine worked in a manner similar to when the plaintiff was injured. But such evidence is only competent to prove the defective character of the machine and the employer's knowledge of the fact; it is not competent to prove actionable negligence on the part of the employer at the time the plaintiff was injured; and the jury should be so instructed at the time it is received." Brewing Co. v. Bauer, 50 Ohio St. 560, 35 N.E. 55, 40 Am. St. Rep., 686. See, also, Carpenter v. Laswell, 23 Ky. Law Rep., 686, 63 S.W. 609; Chicago Mill Lumber Co. v. Ross, 99 Ark. 597, 139 S.W. 632, both fire loss cases; City of Chicago v. Jarvis, 226 Ill. 614, 80 N.E. 1079, a sidewalk case.
In actions for damages for fires caused by railroads, such testimony is quite generally admitted. 11 Ruling Case Law, 996, par. 47; 33 Cyc., 1371. "Evidence of knowledge of a defect or danger on the part of the person sought to be charged with negligence is admissible as bearing on his exercise of due care." 45 Corpus Juris, page 1244, par. 807. See, also, page 1246, par. 811, and page 1248, par. 813.
It is claimed by plaintiffs in error, defendants below, that conditions were not the same as when previous fires were claimed to have occurred; but we think there is sufficient similarity, and that the general static conditions were such as to bring the case within the rule of Brewing Co. v. Bauer, above cited. Suggestion is made that there was no request to limit this testimony. Inasmuch as the testimony was not admitted, no request for its limitation was necessary.
Entertaining the view that this testimony of previous fires was competent as bearing upon the question of knowledge of the owners of the fire hazard created and allowed to exist through the action of their servants and agents, we reach the conclusion that the Court of Appeals was right in reversing the judgment of the court of common pleas for exclusion of such evidence, and its judgment in so doing is therefore affirmed.
Judgment affirmed.
MARSHALL, C.J., KINKADE, JONES and ALLEN, JJ., concur.