I concur in the judgments of affirmance upon the ground that in the light of the entire record it appears, either without any dispute or overwhelmingly, that the defendant owed and breached a duty imposed by city ordinance (§§91.0102 and 91.3303(d)) to provide exit doors opening “in the direction of exit,” and that the failure to provide such doors was a proximate contributing cause of plaintiffs’injuries.
The fact that plaintiffs cannot' prove what portion of their injuries is due to the burning they endured while they were held in the flaming room by the illegal door, as distinguished from the portion which may have ensued from the first flash of flame and during the few seconds which elapsed while they were making their way to the door which should have, but did not, swing out, is immaterial. Under the circumstances of this case plaintiffs are not called upon to trace and allocate partial responsibilities (Summers v. Tice (1948), 33 Cal.2d 80, 87-88 [199 P.2d 1, 5 A.L.R.2d 91]; see Peaslee, Multiple Causation and Damage (1934), 47 Harv.L.Rev. 1127) and, in the very nature of the case, the evidence upon which any attempted apportionment of responsibility would have to be based is so uncertain and unsatisfactory to that end as to make it impossible to say that defendant is not liable for all the injuries sustained. The defendant owner should have foreseen that there might be a fire (whether of innocent'or wrongful origin) and that his failure to supply legal exits *438would cause appreciable, though not apportionable, damage which would not have resulted from the fire alone. Under these circumstances the giving of the other instructions complained of (as to blocking of doors and installing of sprinklers), if erroneous, was not prejudicial.
EDMONDS, J.The affirmance of the judgment in this ease allows the plaintiffs to recover against a property owner upon a verdict rendered by a jury which, the record clearly shows, was misled by incorrect and confusing instructions. The owner was liable for any injuries occasioned by the failure to provide an outswinging door. But the jurors were also told that damages might be awarded because of conditions for which the property owner was not responsible.
It is a fundamental principle that the defendant is entitled to a reversal of the judgment because of prejudicial error when the record shows irreconcilably conflicting instructions and it cannot be ascertained upon what theory the verdict was returned. (People v. Cornett, 33 Cal.2d 33 [198 P.2d 877]; People v. Dail, 22 Cal.2d 642 [140 P.2d 828]; Wells v. Lloyd, 21 Cal.2d 452 [132 P.2d 471]; Westberg v. Willde, 14 Cal.2d 360 [94 P.2d 590]; Wright v. Sniffin, 80 Cal.App.2d 358 [181 P.2d 675]; Jolley v. Clemens, 28 Cal.App.2d 55 [82 P.2d 51].) As Chief Justice Gibson stated in People v. Bail, supra, at page 653, 11 Inconsistent instructions have frequently been held to constitute reversible error where it was impossible to tell which of the conflicting rules was followed by the jury.”
In general, and subject to certain exceptions not here applicable, a lessor is not liable for injuries to the person or property of a lessee or his invitees or employees caused by defects in the leased premises (Neuber v. Royal Realty Co., 86 Cal.App.2d 596 [195 P.2d 501], and cases cited therein). Accordingly, apart from any duty imposed by ordinance, the lessor in this case owed no duty to the plaintiffs, who were the employees of the lessee.
A municipal ordinance* placed upon the lessor, as the owner of the property where the fire occurred, the duty of maintaining a dopr opening in the direction of exit. The evidence would *439support a determination that this duty was breached, and that the breach proximately caused injuries to the plaintiffs. But I cannot agree that the city of Los Angeles placed any legal duty upon the lessor to provide two exits and sprinklers. The requirements in this regard are upon the one using the building rather than the building owner.
Section 91.0502(e) of the ordinance requires sprinklers in every room where certain materials are handled. It is entitled: “Group E-l Occupancies:”, a term which connotes the use of property. The title does not describe a type of building nor does it define a class of building owners; rather, it designates a type of occupant. The section reads: “Every room in which explosive materials in lots of more than eight pounds weight or flammable liquids are manufactured or used in any process . . . [is a Group E. occupancy].” (Italics added.) The section specifies a room having a certain type of use, as being within the terms of the ordinance.
The use is narrowly defined in terms of specified weights of materials. The factors which bring the room within the requirements laid down by the city normally are within the cognizance of the user alone; only he can know whether the “occupancy” is one involving explosives to the extent which brings it within the class defined by the law.
Section 91.0642 of the ordinance provides ‘ ‘ Special Requirements for Sub-Group E-l Occupancies.” Here also the title of the section strongly indicates a duty cast upon the occupants of premises and not the owner of them. Part (b) of this section declares that there must be two separate exits. Part (i) requires that “Every room housing a Sub-group E-l Occupancy shall be sprinklered. ’ ’ (Italics added.) However, under section 91.0642, supra, the room is not one classified as having a sub-group E-l Occupancy unless the explosives exceed eight pounds in weight, a condition which is within the direct knowledge and control of the lessee rather than the owner of the property.
The language of these sections is quite different from that used in imposing conditions concerning the general plan of a building. For example, section 91.3303 provides that, “Every door serving as an exit ... [in areas of specified floor area] . . . shall be constructed and installed in conformity with the requirements of this Section . . . [that the door open in the direction of exit].” (Italics added.) The reference to the word “constructed” shows an intent to make the owner of *440property responsible for compliance with the standard of safety set by the city. In imposing a duty upon the owner of property, the city has not prescribed any particular use of the premises. As stated in the majority opinion, “The section applies to all buildings having the requisite amount of floor space regardless of the use made thereof.” Under these circumstances, Royal Realty Co. is liable for all damages occasioned by its failure to provide a door opening in the direction of exit. On the other hand, it was under no legal duty to provide two exits and sprinklers, and if the jury based its verdict upon the failure to provide them, the judgment should be reversed.
However, even if the lessor owed to the plaintiffs the duty of providing two exits, the record shows the uncontradicted fact that, at the time the lease to the tenant was made, the room where the fire occurred had two doors. The tenant subsequently blocked the rear exit and placed planks over the top of the stairwell leading to it. These were acts of the tenant rather than those of the lessor. But the rear door was not permanently closed. The evidence shows that both it and the stairway were used from time to time when supplies were brought in through the alley. One witness stated that “We often used that stairway in bringing lumber up. ...” This testimony was uncontradicted. The record therefore presents the factual situation of a property owner’s compliance with the legal requirement laid down by the city with intermittent restriction by the tenant upon the use of one exit. Under these circumstances, there is no basis for a conclusion that the property owner either failed to provide the two exits, or breached any duty concerning them for which he may be held liable.
' If an ordinance or statute required that, for the purposes of light and • ventilation, there be in every room of given dimensions a specified number of windows, and a room of the stated area were leased, clearly the lessor would not be liable to the tenant’s employees for suffocation resulting from a closing of the windows by the tenant. This is particularly true where the windows were not permanently closed and were used from time to time. “. . . [W] hen a lessee rents premises that are safe as leased, but are rendered unsafe by his use of them, neither the lessee nor his employees can recover from the lessor for injuries resulting from that condition.” (Neuber v. Royal Realty Co., 86 Cal.App.2d 596, 616 [195 P.2d 501], citing Donahoo v. Kress House Moving Corp., 25 Cal.2d 237 [153 P.2d 349]; Scholey v. Steele, 59 Cal.App.2d 402 [138 *441P.2d 733]; Singer v. Eastern Columbia, Inc., 72 Cal.App.2d 402 [164 P.2d 531]; and Runyon v. City of Los Angeles, 40 Cal.App. 383 [180 P. 837].)
It is suggested that because the lease had expired and the tenant was holding over upon a month to month basis, the lessor is not in the position of having leased the premises with two exits. The contention is that a new lease of the premises was created at the time of the expiration of the lease. The first answer to this argument is that, for the reasons which have been stated, the lessor owed no duty to provide two exits. Further, even assuming that such a duty existed, where a tenant holds over in accordance with the terms of a lease, his possession is a continuation of the tenancy under the lease (Howell.v. City of Hamburg Co., 165 Cal. 172 [131 P. 130]; Robertson v. Drew, 34 Cal.App. 143 [166 P. 838]; see, also, Dean v. Brower, 119 Cal.App. 412 [6 P.2d 580]).
The evidence relating to the burns and disfigurement suffered by the plaintiffs fully justifies the amounts awarded to them by the jury. However, seriousness of injury does not do away with the necessity for a clear basis of liability for damages which have been sustained. And one cannot read the transcript of the proceedings and not come to the certain conclusion that the jurors were confused and misled by the 81 instructions which were given by the trial judge. Indeed, there can be no certainty as to whether the verdicts were based upon the lessor’s failure to provide doors opening in the direction of exit, or by reason of any lack of two separate exits, or because of the lack of sprinklers.
All of the sections of the municipal ordinances which have been mentioned were read to the jury by the trial judge. He then told them that if the lessor knowingly let the premises without sprinkler equipment, the ordinance was violated by him. The court also gave the following instruction: “In reading to you certain ordinances relating to buildings, I have told you what conduct would constitute a violation thereof. I instruct you that the violation, if any, of any of these ordinances by the defendant owner, if such violation proximately caused injury as a result thereof, would constitute negligence unless there is evidence to excuse . . . [his conduct] ” (No. 25).
By another instruction the trial judge told the jurors that he had read to them “the provisions of certain ordinances and in each instance . . . stated what would constitute a violation thereof insofar as such ordinances may, under the facts *442stated, have been, applicable to the defendants. . . . Where a statute or an ordinance prescribes a certain conduct, that is to say, requires the doing of a certain act or forbids the doing of a certain act, the violation of such ordinance or statute amounts to negligence as a matter of law. ...” (No. 33.) He also charged the jurors “. . . that neither the violation of the zoning ordinance, if any, as shown by the evidence nor the letting, if any, of a . . . building for housing a Sub-group E-l Occupancy can afford a basis for recovering by either plaintiff against the defendants. ...” (No. 35.) Concisely stated, having declared to the jurors that, under certain circumstances, the letting of a building for Sub-group E-l Occupancy “in which explosive materials in lots of more than eight pounds weight or flammable liquids are manufactured or used in any process” would constitute negligence, they were told that such negligence could not be considered in determining the question as to the liability of the lessor. This and other conflicts in the instructions most certainly were confusing and presented to the jurors no certain basis for determining the lessors ’ liability.
That the jurors were in doubt about the rules of law governing liability is clearly indicated by the questions of some of them when, during their deliberations, they returned to the courtroom. They asked for a clarification of the “Law regarding sprinkling system,” and stated, “We are confused about a landlord being responsible for results of acts of a tenant. ’ ’ They also said, “Please again give illustration of hypothetical case of landlord and tenant” although no such case had been mentioned in the instructions. Several more instructions were then read to the jury. The effect of the new instructions was to tell the finders of fact that if they found the lessor was negligent in not providing two exits, or was negligent in not installing sprinklers, and either breach of duty was a proximate cause of the' injuries suffered by the plaintiffs, their verdicts should be against the property owner. In Neuber v. Royal Realty Co., 86 Cal.App.2d 596 [195 P.2d 501], an action for damages sustained in the same fire in which the plaintiffs in this case were injured, essentially the same instructions were held to be erroneous.
I agree that the plaintiffs cannot be held to have been guilty of contributory negligence as a matter of law under the applicable ordinances. It is true that section 11.01 of the ordinance defines “person” as “. . . agent, servant, or . . . employee. ...” By section 57.27 of the ordinance, any per*443son is prohibited from permitting the accumulation of an explosive or inflammable material in quantities sufficient to create a fire or explosion hazard. If these provisions were narrowly construed, the plaintiffs’ failure to compel their employer to store the explosive refuse safely, or in the event of his refusal to do so, to leave their jobs, would constitute contributory negligence as a matter of law. But implicit in such a statute is the condition that the employee have some real control over the forbidden conduct. Any other construction of the ordinance would defeat an important purpose of the legislation, which is to protect the employee lacking discretion or some authority from the danger imposed upon him by his employer.
However, as the jnry may have based its verdict upon one or both of the two asserted grounds of liability which would not justify a recovery by the plaintiffs, rather than upon the duty to provide outswinging exits, the errors in the instructions clearly prejudiced the rights of the lessor and may well have caused a miscarriage of justice (Wells v. Lloyd, 21 Cal.2d 452, 458 [132 P.2d 471]; Westberg v. Willde, 14 Cal.2d 360, 369, 371 [94 P.2d 590]). Under these circumstances, the judgment should be reversed.
Traynor, J., and Spence, J., concurred.
Appellant’s petition for a rehearing was denied June 8, 1950. Edmonds, J., Traynor, J., and Spence, J., voted for a rehearing.
Section 91.3303, Ordinance No. 87,000, city of Los Angeles: “Doors serving as exits shall open only in the direction of exit. ...”
Section 91.0642, Ordinance No. 87,000, city of Los Angeles: [Giving requirements for rooms in which explosive materials in specified quantities are manufactured or used in any process] “(b) Every part of every building shall have two separate exits . . “ (i) Every room housing [explosives] shall be sprinklered."