The opinion
On the Merits
( 6 P. (2d) 240 )
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Henry E. Collier,
of Portland (Collier, Collier & Bernard and William Gr. Smith, all of Portland, on the brief), for respondent. ’ •
CAMPBELL, J.
Defendants Henry Danewolf and Marie Danewolf are the owners of a certain lot and building thereon at the northwest corner of the intersection of Failing street and Thirteenth street, Portland, Oregon. The building is a one-story concrete structure used as a store, fronting south on Failing street. These premises were leased and occupied by defendants, Louis Stedding and Jane Doe Stedding, his wife, as a grocery store, with living apartments in the rear part of the building. The living apartments were reached either through the store, during business hours, or by a side door opening on a driveway and walk immediately to the west of the building and leading from garages in the rear to Failing street. This driveway is six and a half feet wide with a curb on the west side four inches high, and a curb on the east side seven inches high. There, is a space between the driveway and the building three feet nine inches wide, separated from the driveway by the curb on the east side of the driveway. This wall?, immediately in front of the side door, is fourteen and one-half inches lower than the curb. From the space in front of the door a step four inches high leads to the left towards Failing street and two steps lead to the right toward the garages, as one comes out of the side door. From the step leading to Failing street the walk is practically level, with the curb ten inches high between the walk, and the driveway. About seven feet southerly and towards Failing street from the entrance to the side door is an open stairway leading tó the basement, with a lower landing place at the northerly end about six feet below
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the level of the walk. There is no curbing, barrier or railing around any part of the stairway. The opening in the walk occupied by the stairway is about nine feet by two and one-fourth feet, lying lengthwise with the building, with the steps leading down from the southerly end, thus leaving between the outer edge of the opening and the curbing of the driveway about eighteen inches of the walk. From the stairway to the street, about ten feet, this paved space has all the appearances of a sidewalk and connects with the sidewalk on Failing street.
About 8 o’clock on the evening of March 29, 1929, the plaintiff, a boy 8 years old, came to the store to make a purchase of groceries. He tried to enter at the front door but was unable to open it. Mrs. Stedding, one of the lessees, who was within the storeroom and saw his attempt to gain entrance, directed him to enter the store through the side door, which he did. He bought a loaf of bread and started home the way he came. When he got through the side door, he turned left and proceeded towards Failing street and fell into the stairway opening and was injured. He brought this suit to recover damages for that injury.
The case was tried to a jury. At the close of plaintiff’s case the appealing defendants moved for an involuntary non-suit, which was denied. When all the evidence was submitted, the appealing defendants moved for a directed verdict in their favor which was also denied. The cause was then submitted to the jury who returned a verdict for plaintiff against all the defendants in the sum of $5,100, and judgment was entered thereon. Appellants moved to set the verdict aside as to themselves, which motion was also denied.
Defendants Henry Danewolf and Mary Danewolf appeal. They base error on the rulings of .the court in
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denying said motions. Before the case was submitted to the jury the appellants requested the court to instruct the jury to return a verdict in favor of the appealing defendants. This requested instruction was merely a renewal of the motion for a directed verdict in favor of the appellants. There was a special verdict submitted to and returned by the jury.
“1. The door to which plaintiff was invited did lead to premises occupied as a residence by the Steddings.
‘ ‘ 2. The defendants Danewolf did not authorize expressly and implicitly the use of said premises for other than residential purposes.
“Unable to answer to question character No. 2.
“James A. Foreman,
“Foreman.”
The foregoing special findings are as set up in appellants’ abstract of record and to which the briefs of counsel for either party are directed. The original record sent up by the clerk is somewhat different but raises the same questions.
This question No. 2 was misleading and too indefinite. It did not define what part of the premises was referred to. The store and living apartments were in the one building on the same floor and all connected by doors. There would be no inconsistency with the general verdict whichever way this question was answered.
The real question presented by the record in this case is: Is the landlord liable to the guests or invitees of his tenants upon the demised premises by reason of a dangerous condition of the premises which existed at the time of leasing and of which both landlord and tenant had knowledge, but of which the injured guest or invitee was ignorant?
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Seasonable minds will agree that the construction of the pavement between the driveway and the building would lead one to believe that it was intended for a sidewalk. It was an invitation to anyone using the side door as an exit to turn either to the right or left. That must have been the purpose of constructing steps. One would not likely step over a curb fourteen and one-half inches high when there were ordinary steps leading in either direction. If one’s objective were the garages, he would naturally turn to the right and up the two steps. If his objective was to reach Failing street, just as naturally would he turn to the left and proceed in that direction using the four-inch step. When he stepped up the four-inch step, there was still a ten-inch curb dividing the paved space from the driveway. One would not be likely to step over a ten-inch curb to walk in a driveway manifestly constructed for the use of automobiles and just wide enough for the purpose intended.
The dangerous condition of the walk and open stairway existed at the time the premises were let and was brought about and entirely produced by the landlord, and he remains liable for injury to third persons, lawfully on the premises, by reason of the dangerous condition which he created, notwithstanding the leasing:
Bailey et al. v. Kelly,
86 Kan. 911 ( 122 P. 1027 , 39 L. R. A. (N. S.) 378);
Larson v. Calder’s Park Co.,
54 Utah 325 ( 180 P. 599 , 4 A. L. R. 731). The law is well and succinctly stated in:
“Therefore, if any responsibility in this case attaches to the defendant, it can not be based upon any contract obligation, but must rest entirely upon its
delictum.
If a landlord lets premises and agrees to keep them in repair, and he fails to do so, in consequence of which any one lawfully upon the premises suffers injury, he is responsible for Ms own negligence
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to the' party injured.' * # * If he creates a nuisance upon Ms premises, and then demises them, he remains liable for- the conseqiiences of the nuisance as the creator thereof, and his tenant is also liable for the continuance of .the same nuisance. * "* . * And there is nó distinction stated in any authority between cases of 'a demise of dwelling houses and of buildings to be used for business purposes. The responsibility of the landlord is the same in all cases. If guilty of negligence or other
delictum
which leads directly to the accident and wrong complained of, he is- liable; if not so guilty, no liability attaches to him. ’ ’
Edwards v. N. Y. & H. R. R. Co.,
98 N. Y. 245 ( 50 Am. Rep. 659 );
Copley v. Balle,
9 Kan. App. 465 ( 60 P. 656 ); See note to
Griffin v. Jackson Light Etc. Co.,
92 Am. St. Rep. 499 .
“There is a wide distinction between acts lawful in themselves, done by one upon his own premises, which
may
result in injury to another if not properly done or guarded, and those which in the nature of tMngs
must
so result. In the former case a party could only be made liable for actual negligence in the performance of the act or mode of maintaining it, while in the latter case he would be liable for all the consequences of his acts, whether gMlty of negligence or not. The .one act only becomes a nuisance by reason of the - negligent manner by which it is performed or maintained, while the other is a nuisance
per se.”
Wood’s Law of Nuisances (2d Ed.), 141.
. In the instant case it is admitted that the landlord had full knowledge of the condition. of the premises at the time of leasing.
Finding no error, the judgment will be affirmed.
Bean, C. J., Brown and Belt, JJ., concur.