Summary
In Staples v. Senders, 164 Or. 244, 261, 96 P.2d 215, 101 P.2d 232, the question was whether a city ordinance requiring that substantial railings shall be provided for wellholes of all stairways applied to trapdoors, and it was held that, while the definition of a wellhole was broad enough to include the opening in a floor when the trapdoor was up, the ordinance was not applicable because much of the time a trapdoor is a part of the floor of the building.
Summary of this case from Fullerton v. LammOpinion
Argued October 10, 1940
Reargued on rehearing February 27, 1940 Reversed November 21, 1939 Former opinion adhered to April 16, 1940
In Banc.
Appeal from Circuit Court, Multnomah County, JOHN P. WINTER, Judge.
Action for damages for injuries suffered from a fall through an open trapdoor by Isaac Staples against Henrietta Senders, executrix, and Arthur Senders, executor, of the estate of Eugenia J. Rothschild, deceased. From a judgment for the plaintiff, the defendants appeal.
REVERSED. FORMER OPINION ADHERED TO ON REHEARING.
James Arthur Powers, of Portland (Otto J. Kraemer, of Portland, on the brief), for appellants. Calvin N. Souther and Robert Mautz, both of Portland (Wilbur, Beckett, Howell Oppenheimer, of Portland, on the brief), for respondent.
This action was commenced against Eugenia J. Rothschild, who died pending the litigation. Her executors, substituted in her place, have prosecuted this appeal. For convenience of statement, the case will be treated in this opinion as though Mrs. Rothschild was still the defendant and appellant.
The defendant has appealed from a judgment for damages for personal injuries in favor of the plaintiff, based upon the verdict of a jury. Plaintiff's injuries resulted from a fall through an open trapdoor and down the stairway to the basement of a building in the city of Portland. The defendant is the owner of the building, and the particular portion of the premises in which the accident occurred was, at the time, in the possession and under the control of a tenant. Rulings of the Circuit Court denying the defendant's motions for a judgment of involuntary nonsuit and for a directed verdict in her favor are assigned as error. The sole charge of negligence is based upon the failure of the defendant to maintain a railing around the trapdoor and a railing along the upper portion of the stairs leading to the basement. It is asserted by the plaintiff that these omissions constitute both a violation of an ordinance of the city of Portland and a breach of the common law duty owed by the defendant to the plaintiff; while the defendant maintains that the ordinance has no application to the case, and that she, as owner of the building, violated no duty to the plaintiff imposed upon her by the law; and that, even though the proof shows negligence on her part, such negligence was not the proximate cause of the accident, but that the plaintiff's injury was caused by his own negligence, that of the tenant, or of both.
The building where the plaintiff was injured is located on South West Third Avenue, at the corner of Columbia Street in the city of Portland. It consists of three stories and a basement. The ground floor is used for stores, and the two upper floors as a hotel. The accident occurred in one of the stores which was occupied by the defendant's lessee, Mrs. Sarah Herman, who for eight years had conducted there a second-hand and antique business. Photographs picturing the conditions were received in evidence, and from these and the oral testimony we gather that the building faced west, the storeroom was fifty-five feet deep and twenty-two feet wide, and the trapdoor, which was seventy-four inches long and thirty-eight inches wide, was a few feet from the north wall which it paralleled lengthwise, the entrance to the basement stairway being at the east end of the trapdoor, which would be the end nearer to the rear of the room. Except at this end there was apparently no means of easy access to the trapdoor because of the wall on its north side and furniture and other articles of merchandise which partially surrounded it. A person desiring to reach it from the front of the store would walk down an aisle between articles of furniture, tables and cases displaying merchandise, and turn to the left at a large piece of furniture, called in the testimony a commode or chest. After passing this chest he would then be in the space immediately to the rear of the trapdoor, to reach which he would have to reverse his course and walk a short distance toward the front of the store. The trapdoor was composed of two sections of equal width, hinged together, and could be opened either by raising the entire door or the section farthest from the wall. In the latter instance the opening made was nineteen inches wide. When this section was raised it leaned toward the north wall a little beyond the perpendicular. The stairway consisted of ten steps apparently about thirty-five to forty inches in width. On the left side, as one descended, was a railing which extended from the level of the floor to the top of a timber nailed to the lowest step.
The basement was used for the storage of merchandise by the tenant, Mrs. Herman, who testified that she transacted most of her business there. The switch which turned on the basement light was somewhere in the rear of the store.
Mr. Staples, the plaintiff, at the time of the accident was eighty years of age. He was a resident of Tillamook where he practiced optometry, but had formerly engaged in the jewelry business, as well, both in Tillamook and at Portland. He knew Mrs. Herman, and had been in her shop many times before to make purchases, although as he testified, he had never before been in the basement. He came to her shop on the afternoon of March 21, 1938, accompanied by Mrs. Staples, to buy a clock. Mrs. Herman said that she wished him to look at some rugs, and for that purpose she and Mr. and Mrs. Staples went to the basement by means of the trapdoor and stairway, which have been described. Mrs. Herman opened the trapdoor by raising the hinged section. They remained in the basement a few minutes and then returned to the first floor, the plaintiff leading the way. The trapdoor remained open. The plaintiff then began to count a large number of clocks which were on display, with the idea of buying them all. These clocks were ranged on shelves and on the north wall of the room. After counting those at the front he went by the route which we have described to the space at the rear of the trapdoor, and was moving sidewise towards the front of the store, facing the wall and counting the clocks as he proceeded, when he fell into the opening and plunged down the stairs to the basement floor. The plaintiff's account of the accident, as given by him on direct examination, is as follows:
"A. I counted the clocks and I then went down along the line, because there was clocks at the back end of the store, and counted the clocks right along the wall and got down at this end, and looking up I kind of — sort of fell sideways down this open space. There wasn't anything for me to catch on to.
"Q. Did you try to catch on to something?
"A. Oh, yes. Oh, yes. And if I could have caught on to anything I could have saved myself.
"Q. Now at the time that you fell you say you fell down the stairs sort of sidewards?
"A. Sort of about like that (illustrating). I had got to the back end of the store and was going front. This was — this wasn't light, you know, because that — it was all covered up in front. It was sort of a aisle.
"Q. What did you do, Senator, when you felt yourself starting to fall? What did you do, if anything, with reference to trying to catch yourself or break your fall?
"A. I threw out both hands. The door was slanting. My hands went down like that on that side of the door (illustrating), and there was nothing here to catch on to at all."
On cross-examination the plaintiff testified that the place was not light, but he did not know whether that would have made any difference because "I was looking at this wall all the time counting clock". Other statements made by him on cross-examination are these: "I was counting clocks up there. I wasn't looking down". "I don't think I noticed a trapdoor there". "I took it for granted that door was closed. I didn't know whether it was. I didn't pay any attention to that, didn't think about that, hadn't my mind on that. My mind was on those — counting those clocks on the wall." In answer to the question whether it was light in the trapdoor, he said: "You could have seen the hole. If I had looked, I would probably have seen the hole."
Mrs. Staples was in the front of the store at the time of the accident and knew nothing of it until she heard the sound of her husband's fall. Mrs. Herman testified, though in this she was contradicted by Mrs. Staples, that she was within a few feet of the plaintiff when he fell and tried to catch him but was unable to do so. She further testified, without contradiction, that she turned on the light before the three of them descended to the basement and that the light was still on when the plaintiff fell. In some important particulars, her version of the occurrence differed from the plaintiff's but as the case must be viewed in the light most favorable to him, her testimony need not be detailed.
The building was constructed in the year 1890. In the year 1935 a fire occurred which damaged the trapdoor and basement stairway, and the defendant, evidently acting in pursuance of the stipulations of the lease to Mrs. Herman, repaired the damage. The stairway was rebuilt, the trapdoor replaced, and around it new flooring was put in. The cost of this work was $574.86, approximately five per cent of the value of the building.
The ordinance pleaded by the plaintiff is the Building Code Ordinance No. 33911 of the city of Portland, which was passed by the City Council on March 13, 1918. It provides in part:
"Section 66. The regulations covering the erection of buildings as given in this code shall apply to buildings hereafter erected and shall apply, under certain conditions, to buildings altered and repaired as covered in Sections 68 and 69."
"Section 69 (a) A building which is repaired to an extent exceeding 60 per cent of its value (not deducting from such value any loss caused by fire) in any period of six (6) months, shall conform to all of the regulations governing the erection of a new building.
"(b) In the repair of any portion of a building not covered by paragraph `a', the work done shall as far as is practical, improve the conditions or conform to the code except the roof covering shall not be repaired to an extent exceeding 40 per cent in a period of twelve (12) months unless the entire roof is changed to conform to the code."
"Section 516. All stairways over three (3) risers in height shall have a substantial railing along the outside of same and if stairs are over four (4) feet or more in width, a railing shall be provided on both sides. Substantial railings shall be provided for well holes of stairs and all handrails to be used by the public shall be at least thirty (30) inches in height measured vertically in the center of treads or in the center of platform landings."
Numerous questions have been argued touching the liability of a landlord to an invitee of a tenant injured on the demised premises, and as to the construction and applicability of the ordinance pleaded and relied on by the plaintiff, none of which we find it necessary to discuss or decide, because we are of the opinion that if the defendant was guilty of any negligence, either under the common law or by reason of failure to comply with the ordinance, such negligence was not the proximate cause of the plaintiff's injury.
If the ordinance be given the construction placed upon it by the plaintiff, it was the defendant's duty, when she made the repairs after the fire in 1935, to provide railings at the trapdoor and a railing along the stairway extending above the floor, instead of one which came only to the floor level. The only negligence pleaded, or of which there can be said to be proof, consists of these omissions, and for present purposes it makes no difference whether such negligence be treated as a violation of the ordinance or the breach of a common law duty. It is not contended that the ordinance requires a railing at the entrance to the stairs. That it does not, was admitted on the argument by counsel for the respondent, and this admission accords with a sensible construction. The ordinance applies, generally speaking, to all stairways in all the buildings in the city of Portland, and it would be a patent absurdity to hold that the City Council intended that property owners must place barriers at the heads of stairways and so interfere with their convenient use. As to the railing along the stairs, the only complaint made is of the failure to prolong it above the level of the floor. This, we think, is required in those cases where the ordinance applies. It is not contended that there should have been more than one stair railing or that the one provided was placed on the wrong side of the stairway.
The plaintiff was proceeding sidewise examining the clocks on the wall, when he fell into the opening at the entrance to the stairs. No railing was required at this point, and the absence of railings on the other three sides of the opening obviously had nothing whatever to do with the accident. If authority were needed for this conclusion it may be found in the case of Torpey v. Sanders, 248 App. Div. (N.Y.) 303, 305, 289, N.Y.S. 532. With respect to the stair railing, the only claim possible to be made of causal connection between the failure to build it in the manner the ordinance enjoins and the accident which befell the plaintiff, must be based on his testimony that, after he started to fall, he tried to catch hold of something, and that if he could have done so he would have broken his fall, and so have saved himself. In fact, no other theory has been urged by the plaintiff. It might be difficult to build a solid or dependable determination of fact on that possibility under any circumstances. The accident occurred when the plaintiff, evidently unaware that the trapdoor was up or that he was close to it, his mind and eyes wholly intent on the clocks he was examining, plunged suddenly into the opening. Had the railing been extended upward from the floor he would have plunged just the same. This no one disputes. What might have happened thereafter under different circumstances, had the railing been extended as it is claimed it should have been, would seem to be too conjectural to be considered as evidence. But, under the facts of this case, this is not even a matter for conjecture. Mr. Staples was facing the wall, with his back to the left side of the stairway along which the railing was built. When he fell and threw out his hands they came into contact, according to his testimony, with the open trapdoor, which was raised and slanting away from the floor on the opposite side. Doubtless he acted instinctively, as a man usually does when he falls into a sudden and hidden danger. It would be fantastic to think that he looked about for a handhold, or could have done so. As he states, "he threw out both hands". His back was to the stair railing, and had it been constructed in all respects in accordance with all the requirements of the ordinance, his hands would still never have grasped it. Its absence neither caused him to fall nor was it in any way a factor in the ensuing consequences.
The rule is universally recognized that in order to impose liability for an injury claimed to be the result of a violation of a statute or ordinance "it must appear that compliance with the statute or ordinance would have prevented the injury" or "it may be shown as matter of defense that compliance with the statute or ordinance would not have prevented the injury complained of in a particular case"; 45 C.J., Negligence, 904, § 479; 1 Shearman and Redfield, Negligence, 6th Ed., 51, § 27. The rule with respect to failure to perform a common law duty is not different: Eklof v. Waterston, 132 Or. 479, 285 P. 201, 68 A.L.R. 1002; Ring v. City of Cohoes, 77 N.Y. 83, 33 Am. Rep. 574; Restatement of Law of Negligence, §§ 431, 432; 45 C.J., Negligence, 904, § 479. As stated by Professor Beale in 33 Harvard Law Review 633, 637, and quoted with approval in Eklof v. Waterston, supra:
"Where the act is the failure merely of a legal duty, causation is established only when the doing of the act would have prevented the result; if the result would have happened just as it did whether the alleged actor had done his duty or not the failure to perform the duty was not a factor in the result, or, in other words, did not cause it."
A case closely analogous on the facts and tending to support the view we have taken here is Gibson v. Hoppman, 108 Conn. 401, 410, 143 A. 635, 75 A.L.R. 148. The plaintiff fell down a stairway which she was descending. One ground of negligence charged was the failure of the defendant to light the stairway, and another that no handrail was provided. The plaintiff testified that she kept her right arm against the wall to guide her as she passed down the stairs and fell as she reached a turn. The court held that on the former charge a jury question was presented, but that the jury could not reasonably have found that the defendants were guilty of a breach of duty in failing to provide a handrail or that its absence was a proximate cause of the plaintiff's fall. Other cases illustrating the principle and more or less analogous are Iudica v. DeNezzo, 115 Conn. 233, 161 A. 81; and Wartik v. Miller, 48 Ohio App. 494, 194 N.E. 433.
Whether plaintiff was guilty of contributory negligence in passing along the floor without keeping a lookout; whether Mrs. Herman's conduct in leaving the trapdoor open and failing to warn the plaintiff, constituted negligence on her part, it is unnecessary to determine. But certain it is, under the undisputed facts in the record, that it was one of these acts, or both of them concurring, whether negligent or otherwise, and not the failure of the defendant to comply with the ordinance, which was the proximate cause of plaintiff's injury: Whisler v. U.S. National Bank, 160 Or. 10, 82 P.2d 1079, and Lewis v. Jake's Famous Crawfish, Inc., 148 Or. 340, 36 P.2d 352. The absence of a railing was, as Mr. Justice RAND said in the Eklof case, "only a condition or circumstance surrounding the happening of the accident".
Since the evidence shows that one of the essential elements of a cause of action based on negligence is lacking in the plaintiff's case, the Circuit Court erred in denying defendant's motion for a directed verdict, and the judgment in favor of the plaintiff must be reversed and one entered for the defendant. It is so ordered.
RAND, C.J., and KELLY, BELT and BEAN, JJ., concur; ROSSMAN and BAILEY, JJ., not sitting.
Argued on rehearing February 27; former opinion adhered to April 16, 1940 ON REHEARING ( 101 P.2d 232)
The plaintiff recovered a judgment in the Circuit Court for personal injuries sustained when he fell through an open trapdoor on premises owned by the defendant and in the possession and control of a tenant of the defendant. Without passing on other questions presented in the record, we held, in a former opinion, that, if there was any negligence of the defendant shown, such negligence as a matter of law was not the proximate cause of the accident. We granted a rehearing because of certain evidence brought to our attention by counsel for the plaintiff, which, if susceptible to counsel's construction, casts doubt upon the correctness of our conclusion.
The accident is described in some detail in our former opinion. It may here be briefly summarized as follows. The plaintiff was on the premises, occupied as an antique and second-hand shop by the defendant's lessee, as a prospective customer. The trapdoor, when closed, constituted a part of the floor of the shop and covered a flight of stairs to the basement, to which the plaintiff, with his wife and the proprietress of the shop, had descended but a few minutes before the accident. On their return to the ground floor the trapdoor was left open. The plaintiff then proceeded to examine some clocks which were hanging on one of the walls of the shop. As he did so he was facing the wall and moving sidewise in the direction of the opening. His gaze and attention being fixed on the clocks, he came to the opening without seeing it and plunged through to the floor of the basement below.
The only ground of negligence set forth in the complaint was the failure of the defendant to maintain railings around the opening and a railing along the upper portion of the basement stairs. On one side of these stairs was a railing which stopped at the level of the floor. Under plaintiff's contention this railing should have been extended through the trapdoor and above the floor. It was our view that, even though such railings had been provided, they would not have prevented the accident because the plaintiff's testimony, a portion of which is quoted in the opinion, showed that, owing to the manner in which he fell and threw out his hands, no such railing, had it been there, would have come within his grasp. Our re-examination of the testimony, and particularly that portion of it on which counsel for the plaintiff rely in their petition for rehearing, convinces us that that construction of the evidence was too restricted. While the record is not clear and plaintiff's statements are somewhat confusing, we think the jury could have found from his evidence, taken as a whole, that, as he fell, he reached with his left hand for the place where it is claimed the railing along the stairway should have been. If this were so, he might have grasped it and broken his fall; and, although the matter is more or less speculative, yet, under those circumstances, if negligence of the defendant in the particular alleged was shown, the question of proximate cause would then become a question for the jury: Lyons v. Lich, 145 Or. 606, 613, 28 P.2d 872; American National Bank v. Wolfe, 22 Tenn. App. 642, 125 S.W.2d 193; Dexter v. Fisher, 256 App. Div. 738, 11 N.Y.S. 2d 776; Renfro Drug Co. v. Jackson, (Tex.Civ.App.) 81 S.W.2d 101.
It becomes necessary, therefore, to determine whether the owner of the premises was guilty of a breach of duty to the plaintiff in failing to surround the trapdoor with handrails and in failing to extend above the floor level the handrail which ran alongside the stairs.
The plaintiff has pleaded, and relies upon, the Building Code Ordinance No. 33911 of the City of Portland, passed in 1918, the pertinent sections of which read as follows:
"Section 66. The regulations covering the erection of buildings as given in this code shall apply to buildings hereafter erected and shall apply, under certain conditions, to buildings altered and repaired as covered in Sections 68 and 69."
"Section 69 (a) A building which is repaired to an extent exceeding 60 per cent of its value (not deducting from such value any loss caused by fire) in any period of six (6) months, shall conform to all of the regulations governing the erection of a new building.
"(b) In the repair of any portion of a building not covered by paragraph `a', the work done shall as far as is practical, improve the conditions or conform to the code except the roof covering shall not be repaired to an extent exceeding 40 per cent in a period of twelve (12) months unless the entire roof is changed to conform to the code."
"Section 516. All stairways over three (3) risers in height shall have a substantial railing along the outside of same and if stairs are over four (4) feet or more in width, a railing shall be provided on both sides. Substantial railings shall be provided for well holes of stairs and all handrails to be used by the public shall be at least thirty (30) inches in height measured vertically in the center of treads or in the center of platform landings."
The building was erected before the ordinance was passed, but afterwards, in 1935, a fire occurred which damaged the trapdoor and the stairway beneath it, and the defendant made the necessary repairs at a cost of approximately five per cent of the value of the building. It is the contention of the plaintiff that in making these repairs the defendant failed to comply with the requirement of Section 69 (b), that "the work done shall, as far as is practical, improve the conditions or conform to the code". The Circuit Court submitted the question to the jury, instructing them that, if they found that the trapdoor constituted a wellhole when open, and that it would have been practical for the defendant in replacing the trapdoor "to have improved the conditions or conformed to the code by constructing a substantial railing for said wellhole", and that she failed to do so, she was negligent; and, further, that, if the jury found that "it was practical for the defendant to have improved the conditions or conformed to the code by constructing a handrail along the outside of the upper portion of said stairs", and that she failed to do so, she was negligent.
It was the duty of the court to construe the ordinance, and it was error so to charge the jury as to permit them to determine whether or not its provisions governed the rights of the parties. The question, for example, whether the opening in the floor was a wellhole within the meaning of the ordinance was a question of law and not of fact. Were it to be held otherwise, then in another case presenting identical facts another jury could find that such an opening was not a wellhole and that the ordinance was inapplicable, and there would be no rule for the guidance either of property owners or the officers of the city.
The defendant having, at the trial, by appropriate motions, raised the question, it becomes our duty to construe the ordinance and determine whether it applies to the facts presented by the record in this case. In so doing, we are required to avoid imputing to the lawmaking body an intention that would lead to absurdity and to give to the provisions a reasonable construction. "A thing within the intention is regarded as within the statute though not within the letter, and a thing within the letter is not within the statute unless within the intention." People v. Chicago, 152 Ill. 546, 551, 38 N.E. 744.
The use of trapdoors in buildings and sidewalks is a matter of common knowledge ( Whisler v. U.S. National Bank, 160 Or. 10, 82 P.2d 1079, and Lewis v. Jake's Famous Crawfish, Inc., 148 Or. 340, 36 P.2d 352), and is recognized by the Building Code of the City of Portland, Section 794. Ordinarily trapdoors in buildings cover a flight of stairs, and about the only purpose they serve is to form a part of the floor when not open and thus permit the free use of that portion of the floor space. See Torpey v. Sanders, 248 App. Div. 303, 289 N.Y.S. 532. If they must be surrounded by railings this utility is lost, and the trapdoors themselves might as well be abolished. We are not now questioning the power of the city council to enact a regulation abolishing them, but only calling attention to the consequences of attaching to the ordinance the meaning insisted upon by the plaintiff.
The regulations do not refer specifically to trapdoors, but to wellholes of stairs. A wellhole is defined as "the open space in a floor, to accommodate a staircase" (Funk and Wagnall's New Standard Dictionary), and in a literal sense that definition may be said to fit the case when the trapdoor is open, though obviously it does not when the trapdoor is closed. We are, therefore, faced with an ambiguity in the ordinance as it is attempted to be applied here, and we think it accords more with common sense to take the view that the city council had no intention of requiring property owners to build handrails around what most of the time is, to all intentions and purposes, a part of the floor of the building, and thus to destroy the only utility that a trapdoor possesses. This also holds true with respect to a stair railing extended through a trapdoor and above the floor.
We find the expression wellholes used again in the following portion of Section 797 of the ordinance: "Except as provided for in Sections 794, 795, and 796, all well holes, shafts and other vertical openings in floors and between the ceiling and the roof shall be enclosed on all sides with masonry walls or fireproof partitions", etc. Section 794 reads in part: "Unless specifically provided otherwise in this code, openings in floors not enclosed or protected by trapdoors or hoods in buildings exceeding two (2) stories in height, shall be permitted only" in buildings of certain grades. Section 795 deals with elevator shafts, and Section 796 with clothes chutes and wood lifts, and neither throws light on the subject. But, in Sections 794 and 797, it is seen that the city council has used different words to convey the ideas of what we commonly think of as a wellhole and a similar opening which is protected by a trapdoor, a discrimination in terms which we believe the legislative body would have been at equal pains to employ had the intention been to require railings to be maintained at trapdoors.
In Morrison v. McAvoy, 7 Cal. Unrep. 37, 70 P. 626, an ordinance providing that "every person shall keep around every * * * flight of stairs descending from the sidewalk to the basement owned or occupied by him, a fence or railing at least three feet high" was held not applicable to stairs protected by trapdoors, but only to "open stairways as they are sometimes constructed next to the building or next to the curb, and where the protection around the stairs is by a railing". The language of the ordinance, literally read, was broad enough to include the stairs in question, but the court refused, and we think rightly, so to apply it.
We are of the opinion that the ordinance here relied on has no application to the facts of this case, and it remains to consider the plaintiff's contention that the defendant was guilty of a breach of duty which she owed to the plaintiff at common law. Being the owner of the premises which she had leased to another, who had the exclusive possession and control, the defendant would not be liable on account of personal injuries sustained by her lessee's invitee, unless such injuries were caused by some defect in the premises existing at the time of the letting or resulting from the owner's negligence in the making of repairs, either voluntarily or pursuant to the stipulations of the lease: Lyons v. Lich, 145 Or. 606, 28 P. 872; Senner v. Danewolf, 139 Or. 93, 103, 293 P. 599, 6 P.2d 240; Ashmun v. Nichols, 92 Or. 223, 178 P. 234, 180 P. 510; Fleischner v. Citizens' Investment Company, 25 Or. 119, 126, 35 P. 174; 1 Tiffany, Landlord and Tenant, 649, § 96; 16 R.C.L., Landlord and Tenant, 1067, § 588; 36 C.J., Landlord and Tenant, 225, § 914. As to defects in the leased premises existing at the time of the demise it is generally held that even then the landlord is not liable for injuries caused by them to his tenant, or one standing in the tenant's right, unless they are so hidden that the lessor could be regarded as under an obligation to notify the lessee of their existence. 1 Tiffany, ibid, 563, § 86d, 649, § 96a; 16 R.C.L., ibid, 1068, § 588; 36 C.J., ibid, 204, § 874. It has been held in this state, however, that where the landlord creates a nuisance upon his premises and then demises them, and an invitee of the lessee is injured as the result, the landlord remains liable for the consequences of the nuisance as the creator thereof, notwithstanding, apparently, that the dangerous condition was known to the lessee as well as to the landlord: Senner v. Danewolf, supra; see 16 R.C.L., ibid, 1069, § 589.
It follows from these principles that the defendant here is not liable to the plaintiff for the injuries sustained by him unless it can be said that his injuries were caused by conditions existing on the premises at the time of the demise, which constituted a nuisance, or became such as a result of the repairs made by the defendant following the fire damage in 1935; and that actually presents but one question because, so far as any charge of negligence in this case is concerned, the conditions were, for all practical purposes, the same after the repairs were made as at the time of the demise. The trapdoor itself and the stairs beneath it were free from structural defects. That the maintenance of this type of construction by an owner of the premises is not nuisance, nor any evidence of negligence, is established by two recent decisions of this court: Whisler v. U.S. National Bank, supra, and Lewis v. Jake's Famous Crawfish, Inc., supra. In the latter case a person was injured by falling through an open trapdoor in the sidewalk. In the former an invitee on leased premises was injured by falling through an open trapdoor in a store. In both cases the owners of the premises were held blameless. The doctrine of these precedents, that there is nothing inherently dangerous about a trapdoor; that the only danger lies in its use, over which the landlord of leased premises has no control; and that the proximate cause of an accident, such as befell the plaintiff here, is not any negligence of the owner of the premises but the act of the tenant in permitting the trapdoor to remain open when the stairs are not in use, applies with all its force to the case at bar.
For these reasons we are of the opinion that the Circuit Court erred in denying the defendant's motion for a directed verdict. Our former opinion is modified in the particulars above indicated, but we adhere to the conclusion there stated that the judgment in favor of the plaintiff must be reversed and a judgment entered for the defendant.
RAND, C.J., and ROSSMAN, KELLY and BELT, JJ., concur.
BEAN and BAILEY, JJ., not sitting.