(dissenting).
In this case much of the contention between counsel for the respective parties relates to whether the stairway upon which plaintiff fell and was injured constituted a “common stairway.” In my opinion it was a common stairway leading from the ground level to apartments on the first and second floors of the building, the stairway being one structure used in common by all tenants, as well as by the defendant landlord, acting by its employee.
The fact that the first floor tenants did not need the entire stairway for access to their apartments is immaterial since the second floor tenants could not possibly have reached their apartments except by the use of the entire stairway including that portion used by the first-floor tenants. As stated above, it was all one structure, so recognized by the landlord by the use made by it in assuming the burden of keeping the stairway free from ice and snow, as well as the use made by it in removing the garbage for all the tenants and in making repairs thereto.
However, this case was not submitted to the jury upon the issue of the stairway being a “common stairway.” The issue upon which the court submitted the case to the jury is definitely stated by the trial judge on pages 232 and 233 of the bill of exceptions as follows:
“I am not submitting to the jury whether or not this is a common stairway * * *. I am simply submitting to the jury whether or not the evidence shows that the landlord had the care of that stairway under the implied contract as indicated by the plaintiff’s evidence and, if so, then they are to go to the matter of whether or not he exercised ordinary care in the removal of the ice and snow.”
In furtherance of that statement of the trial judge, the court, on motion of the defendant, struck from the petition all allegations thereof relating to unlawful construction of the stairway and negligence as to repairs thereto, and in his charge to the jury the judge read the allegations of the petition other than the matter deleted therefrom, and read *435the allegations of the answer and of the reply, and thereupon stated:
“In other words, the petition, the answer and the reply which the court has just brought to your attention, make up the issues of the case.”
(Appellant in its assignment of error No. 4 claims that the court did not define the issues in the case, to which assignment of error further reference will be made hereinafter.)
By reference to such petition, as deleted, it is seen that the court submitted to the jury the question whether the plaintiff has established that the defendant retained possession and control of the stairway, and if so, whether the defendant exercised ordinary care in its duty to remove the ice and snow under the implied contract shown by the evidence, the court correctly stating in the charge the rules as to the preponderance of the evidence and proximate cause. The court also correctly charged on the issue of plaintiff’s contributory negligence, raised by the answer and denied by the reply, all such issues being decided by the jury in favor of plaintiff.
In my judgment the trial court did not err to the prejudice of defendant in so limiting the issues. Nor did the jury err in finding for the plaintiff upon the issues submitted to it. The question of the weight of the evidence is involved, but even if this court would unanimously agree that the verdict is against the weight of the evidence, only a reversal and not final judgment would follow. I do not agree that the verdict is against the manifest weight of the evidence. The defendant offered no evidence in this case (other than a photograph of the stairway and building) except by way of cross-examination of plaintiff’s witnesses. It is interesting to note that the trial judge, as shown on page 241 of the bill of exceptions, expressed his opinion in the absence of the jury as follows:
“The state of the evidence is such that there is an implied contract.”
It is manifest from the evidence in this case that as an incident to the contract of lease the landlord impliedly agreed with its tenant, for the consideration named in the lease, that it would keep the stairway free from ice and snow so as to make the same safe, for the evident and recognized purpose of lessening the danger of the tenant falling thereon. The landlord over the previous duration of the lease had recognized his obligation to his tenant in that respect, having consistently theretofore performed his duty in removing the *436ice and snow, providing its own employee the implements used for that purpose. Would anyone contend that the plaintiff, designated here as tenant, would not be entitled to such damages as would reasonably be contemplated by the parties if she had made a contract with a stranger to the landlord, by the terms of which contract the stranger, for a consideration, had agreed to keep the stairway free from ice and snow and had not used ordinary care to perform his contract and as a proximate result of such failure the plaintiff fell and suffered injuries to her person? Of course, any contributory negligence of the plaintiff in using the stairway with knowledge of its condition would be for the jury in determining the proximate cause of her injuries. Could it be said that her only right of recovery would be limited to the amount which she might have to pay to have the ice and snow removed, under the theory that her action is not in tort but solely upon contract? There is but one form of action in Ohio for relief under such circumstances, a civil action, and the damages for violation of contract are measured by what was reasonably contemplated by the parties as the natural consequence of a breach.
Why did the landlord in this case undertake to keep the stairway free from ice and snow? What was in the minds of both parties at the time this lease arrangement was entered into, as shown by the evidence in this record? This was not an action for failure to make repairs. Personal injury to the tenant as a result of the failure of the landlord to remove the ice and snow was not a remote consequence: the inherent nature of ice and snow is a matter of common knowledge, and especially is its dangerous propensities known when a person of the advanced age of plaintiff is subjected thereto.
That tort may arise out of the violation of a contract, either by reason of negligence in performance or in failure to perform when personal injury is reasonably contemplated as a natural result of such negligence or failure, is fundamental. See II Restatement of the Law of Torts, Sec. 357 (p. 967). My respect for the eminent authorities responsible for the Restatement gives me confidence in relying thereon. See also 163 A. L. R. 300, where it is stated in the Introductory to the Annotation on the subject of “Breach of Lessor’s Agreement to Repair as Ground of Liability for personal Injury to Tenant or One in Privity with Latter”:
“At the time the earlier annotations on the present subject were written there was clearly a majority and a minority view as to the liability of a landlord for personal injuries where there was a total failure to perform an agreement to *437repair the leased premises. The majority rule was that the landlord was not liable. However, there is now a pronounced trend toward the view that the landlord is liable for personal injuries under such circumstances and the American Law Institute’s Restatement of the Law of Torts accepts this view (See Sec. 357.) It now seems improper to say that it is the majority rule that the landlord is not liable for personal injuries, for it is doubtful whether a majority of the courts adhere unqualifiedly to this view.”
I cannot recognize any right of a landlord, as such, to a halo over his head which makes him immune to the consequences of his violation of contract where personal injuries result to one with whom he has directly contracted, as distinguished from-one not in privity, where personal injuries were reasonably contemplated by the parties as a natural result of such violation.
The cases most strongly relied on by appellant for its claim to reversal and final judgment in its favor, are: Ripple v. Mahoning National Bank, 143 Oh St 614, and Cooper v. Roose, 151 Oh St 316.
This case is clearly distinguishable from Ripple v. Bank, supra, where the plaintiff was injured in the private office of one of defendant’s tenants and not on the stairway of the building. The Mahoning County Court of Appeals, of which the writer was a member sitting in that case, found that although the landlord had agreed with its tenant to make repairs to such office, there was no privity of contract between plaintiff and the landlord, and based its decision, which was affirmed by the Supreme Court, on Burdick v. Cheadle, 26 Oh St 393, Marqua v. Martin, 109 Oh St 56 and Berkowitz v. Winston, 128 Oh St 611. The controlling factor in that case was the lack of privity of contract between plaintiff and the landlord; nothing else was necessary to the' decision of the case and the court believed it would be mere obiter dicta if we attempted to express an opinion as to the law applicable had the plaintiff been injured on the stairway.
The case most strongly relied on by appellant for final judgment in its favor is Cooper v. Roose, supra. In my opinion that case is clearly distinguished from this. That case was based upon a claimed contract to make repairs, the evidence disclosing that the landlord at no time had possession, occupation or control of the porch after the lease to the tenant. The element of occupation or control was held to be necessary to liability of the landlord for personal injuries resulting from the condition of the premises, and that holding, among others, distinguishes that case from this. In his opinion in the cited case at page 319, Judge Taft states:
*438“From the evidence in this case, it is clear that there was no occupation of this porch by the landlord after rental of the second and third floors to the plaintiff. The plaintiff’s testimony clearly showed that, from the time of the rental until after the accident, the landlord never appeared on the premises and never, either himself or through others, took any steps to occupy or take possession of the porch.”
And on page 321 of the opinion Judge Taft states:
“In the instant case there is, and on the evidence there can be, no claim that defendant was negligent in making repairs. The evidence discloses that he did nothing about make repairs."'
Nor were there any facts in that case which disclosed that the parties had in mind that the mere failure of the landlord to make repairs would subject him to liability for personal injuries. The plainest interpretation of the agreement was that the parties had in mind only the asthetic appearance of the respective portions of the building, the plaintiff to be responsible for the appearance of the inside and the landlord of the outside. Certainly it was not contemplated by the parties, that the tenant would be liable to the landlord for personal injuries which might result from the failure of the tenant to redecorate or repair the interior of the leased premises, and at most the evidence disclosed only mutual promises with reference to the asthetic appearance of the property.
On page 321 of his opinion, Judge Taft states that the reason for denial of recovery against the landlord of damages for breach of his contract to make repairs is that personal injuries are not a natural and probable consequence which ordinarily and reasonably could be anticipated from a breach of an agreement to make repairs. The corollary of that statement implies that where personal injuries are a natural and probable consequence which ordinarily and reasonably could be anticipated from the breach, liability attaches.
The stated rule and the operative facts clearly distinguish this case from Cooper v. Roose, supra. The supreme court of this state has repeatedly held that the syllabus of a decision of that court states the law of Ohio with reference to the facts upon which the syllabus is predicated, and that it must be interpreted with reference to those facts and the questions presented to and considered by the court. Williamson Heater Co. v. Radich, 128 Oh St 124; Maryland Cas. Co. v. Frederick Co., 142 Oh St 605, 609; Leube v. Prudential Ins. Co., 147 Oh St 450, 456; Midvale Coal Co. v. Cardox Corp., 152 Oh St 437, 445. As stated by the learned trial judge in Whitney v. American Shipbuilding Co. 23 O. Dec. 1 at page 9:
*439“The authority of a decision is found, not in the language of the opinion, nor of the syllabus, nor in the judgment pronounced, but in the doctrine of the case, the reason of the decision, the ratio decidendi. It is found in the proposition of law necessarily involved in the decision; and the proposition of law necessarily involved is one without which the case could not be decided as it was decided. The jurisdiction of the court is restricted to the decision of such proposition, and its decision is not a precedent for anything beyond this. State v. Baughman, 38 Oh St 455, 459.”
Thus it is seen that nothing in the language of the opinions or in the syllabi of - the cases relied upon by appellant was binding upon the trial court or upon this Court of Appeals, because of the distinguished character of the operative facts of this case and the law applicable thereto.
There being no claim by plaintiff of an express contract binding the defendant to remove the ice and snow from the stairway, it is apparent that the jury found from the evidence that an implied contract to keep the steps free from ice and snow arose from the conduct of the defendant, the use made by it of the stairway, the location and construction thereof, its availability for use for the benefit of all the tenants, and particularly that at all times previous to the injuries of plaintiff, defendant had retained control of the stairway for use by its agents and servants, to whom it had furnished the implements which were used by its employee for the removal of the ice and snow, and the jury was justified in finding that the parties reasonably contemplated that the landlord would be liable for personal injuries to plaintiff, by reason of defendant’s breach. Photographs of the building and stairway were in evidence, from which the jury could observe that there was not one stairway for the plaintiff and another for the other tenants of the building, but that the stairway was erected as a whole structure for the accommodation of all the tenants and the landlord.
There are but four assignments of error, the first three and a part of the fourth urging error in the refusal of the trial court to sustain motions for final judgment for defendant. Such assignments are not well taken.
The fourth assignment of error raises the question whether the trial court properly submitted the issues to the jury by reading the pleadings and telling the jury they make up the issues in the case. We do not recommend this method of stating the issues provided there is a more definite or specific method of stating them. Although called upon for suggestions as to the charge counsel did not suggest a more *440definite or specific method of stating the issues. Error in this respect would only call for reversal and not final judgment. It is my conclusion that the jury fully understood the issues in the case and that no prejudicial error intervened warranting a reversal. I further conclude from the whole record that substantial justice has been done the parties in the trial court and that the judgment should be affirmed.