Scherman v. Allard , 1 Ohio Law. Abs. 551 ( 1923 )

HAMILTON, J.

Epitomized Opinion

This is an action for personal injuries to Do-retta Scherman, a minor, five years o'f age. Defendant had constructed or suffered to remain - in the sidewalk abutting his premises a deep hole, 10 or 12 feet deep, and about 43 inches wide. Said hole or areaway was located entirely within the limits of the public sidewalk. Adjacent to this areaway the defendant constructed a small porch and.; steps' in front of his premises, which gofch and steps were used' by people in going to and from the premises. The plaintiff, a minor, while holding on to a railing which extended around the side of the porch and areaway fell into this hole and was seriously injured. Evidence was introduced showing that the railing was rotten, defective, and insecurely fastened, and that it was inadequate to prevent children from falling into the hole beneath. It also appeared that the defendant owner had rented the premises to two different persons, one of whom occupied the first floor, the other the second. At the close of plaintiff’s evidence the defendant moved for a directed verdict, which was granted. Thereupon plaintiff prosecuted error. In reversing the judgment of the lower court, the Court of Appeals held:

1. The owner of premises who leases them when there is a defect in the original construction is liable to a third person for injuries received while a tenant is in possession, if the proximate cause of the accident was the defect existing at the time of the demise of the premises.