Epitomized Opinion.

This action was originally brought in the Cuyahoga Common Pleas by Para Nowakowski against Julia Yurick. Nowakowski alleged that she had sustained injuries while a tenant in an apartment owned by Yurick. It seems that there was in the rear of the apartment a frame dwelling also owned by Yurick, and as a means of ingress and egress a small porch leading from the frame dwelling to the main porch of the apartment, was used by tenants of the dwelling. It is claimed by Nowakowski, while shaking out a rug and standing on said small porch or passageway, the railing on balustrade gave way and she was precipitated to the ground below, said injury occuring because of negligence of Yurick in the maintenance of said small porch.

Yurick in turn argued that Nowakowski had no right to be on the small porch leading to the frame dwelling for the reason that she, as a tenant of the apartment, had access to the main porch, and her entrance upon the small porch was pure trespass. The trial court rendered a judgment on a verdict returned by the jury for $10,000 in favor of Nowakowski. Error was prosecuted and the court of Appeals held:

1. Due to the fact that the frame dwelling was unoccupied control of the premises and of the passageway could not have been demised so that control was still reserved in Yurick. This being so, she was liable for ordinary care in the maintenance of passageway.

2. Any tenant of the apartment had right to use small porch in order to get to dwelling.

3. This case is distinguished from Kelly v. Davis, as in that case Kelley demised the premises to the tenant, while in the case at bar, control was necessarily reserved.

Verdict remitted to $6,000 by consent of Nowakowski and judgment affirmed.