Levick v. J. A. Patterson Co.

Opinion by Orlady, P. J., The appellant’s testimony develops the fact that this action against the defendant is one against a landlord who has been out of possession of the premises for a year prior to the happening of the accident, and that the tenant in possession had exclusive possession or control of that part of the premises in which the cause of the accident originated. The allegations of negligence on which appellant relies are that “the owner of said premises, did [266] negligently, carelessly and unlawfully maintain said pavement in an unsafe condition, to wit, that the said metal covering of the said coal hole was not securely fastened,” as the result of which — the plaintiff was injured. No evidence was adduced to warrant a finding that the premises were not in a safe condition when possession was delivered to the tenant, or that the landlord thereafter exercised any control or supervision over the cellar area. The facts of the case are fully and clearly set out in the opinion of the trial judge, by which a judgment is entered for the defendant notwithstanding the verdict, and after a careful review of the testimony, we are in accord with his conclusion. “A plaintiff cannot make out a case by proof that the injury was caused by one or more of a number of equally probable causes, some of which show negligence on the part of the defendant and the others do not. He is required to prove that the defendant was negligent and that his negligence caused the injury”: Bollinger v. Crystal Sand Co., 232 Pa. 636. There is nothing in this record to show that the landlord had exercised any control or supervision over the appliance which held the coal hole plates in place. That duty passed to the tenant with his taking possession of the premises, as the landlord was excluded from the premises by his lease to the tenant. It was clearly shown that when this possession was delivered, the coal hole cover and the attachment were safely arranged. The only cause of the accident was the tilting of the plate, but no testimony was adduced to show why the plate tilted or that the landlord had not exercised every reasonable precaution in providing for its safe retention in the countersunk groove. This defendant is in no way connected with the negligent use of this appliance, and the judgment in favor of the defendant, notwithstanding the verdict, was properly entered. It is now affirmed.