(concurring in part and dissenting in part):
I concur in the affirmance of the judgment below in favor of the third-party defendants, Joseph and Pearl Prager. I also concur in the granting of a new trial to the defendant-appellant Dauphin Realty Co., Inc. for the reasons stated in Part II of the majority’s opinion. I disagree, however, with the granting of *193a new trial for the reasons which the majority states in Part III of its opinion.
Part III of the majority’s opinion concerns the trial judge’s instructions to the jury with respect to the second basis of Dauphin’s alleged liability, viz., its entry upon the leased premises to “repair” the platform and not merely to “decorate”, viz., paint it. The majority has found these instructions to be erroneous under Pennsylvania law. I hold to the contrary. Since the case is to be tried again it is of critical importance that the jury be correctly instructed else this case will be here again.
In the instant case the trial judge properly instructed the jury that if it found that Dauphin had entered upon the premises only to decorate that it would not be liable but that if it entered upon the premises to make repairs then it could be liable for its failure to correct an existing defective condition, and that the jury could then hold both Dauphin and the tenant liable to the plaintiff. The majority erroneously subscribes to the view that the jury should have been instructed that the tenant was not liable if Dauphin had entered upon the premises to make repairs.
It states:
“The jury should have been instructed that if the painting by Dauphin was not to be considered as repairs, then Dauphin, the landlord, had not assumed the requisite control over the platform area so as to place upon itself the duty of due care. Such control being absent and if such defect were discoverable by a reasonable inspection, the tenants would bear the brunt of sole liability. However, the jury should also have been informed that if it found the painting by Dauphin to be repairs, or an attempt at repairs, then the requisite control had been assumed by it, and on the legal ground of assumption of control by the landlord subsequent to the leasing arrangement, Dauphin, and not the tenants Straffs would he held liable. The failure to give such instructions constitutes error.” (emphasis sup-' plied)
The majority does not cite one case in support of its view.
It is clearly the law in Pennsylvania that a tenant in possession owes a duty to his business invitees to keep the leased premises in a reasonably safe condition or to warn of dangers thereon of which he knows or can ascertain by a reasonable inspection, and breach of that duty causing injury to the invitee will result in his liability. Greco v. 7-Up Bottling Co. of Pittsburgh, 401 Pa. 434, 165 A.2d 5 (1960); Stark v. Lehigh Foundries, Inc., 388 Pa. 1, 130 A.2d 123 (1957).
The instruction given by the trial judge was consistent with the Pennsylvania law.