Harmony Realty Co. v. Underwood , 1927 Ohio Misc. LEXIS 933 ( 1927 )

LEVINE, J. .

. “In the opinion of this court, whatever liability attaches to The Harmony Realty Company, is not on the theory of respondeat superior, but upon the basis that it was itself guilty of negligence. There was clearly a duty devolving upon The Harmony Realty Co. to keep the walks used by the tenants free and clear from nuisance. Its failure to perform said duty would, under certain circumstances constitute negligence. Nor could The Harmony Realty Co. rid itself of that obligation by letting the work of cementing the areaway to an independent contractor.

On the question of contributory negligence, we find that the court submitted the same to the jury. It is undoubtedly true that the defendant owed a duty of exercising ordinary care for her own protection. Gibbs v. Village of Girard, 88 OS. 84.

In the opinion the court very distinctly points out that it is not the duty of a pedestrian to look for holes in the sidewalk or obstructions upon the same, that in all cases the question of fact should be submitted to the jury, whether the plaintiff’s own negligence proximately contributed to the injury which he sustained; that when the court submits the question to the jury, it fully performs its duty.

The case of Jackson v. The Cleveland Ry. Co., 111 OS. 498, reaffirms the doctrine laid down in the Gibbs case.

Upon a study of the record, we have reached the conclusion that substantial justice was done in this case, and the judgment of the Common Pleas Court will, therefore, be affirmed.”

(Sullivan, PJ., and Vickery, J., concur.)