JOHNS, J.
It appears that at the time of the leasing the building in question was very old, out of repair and in a dilapidated condition ■, that it was only a mat[227]*227ter of a short time until it would have to be torn down; that it was necessary that certain improvements should be made before it would be a fit or suitable place for habitation; that certain repairs were then made and during the three-year period of the leasing the landlord continued to make minor and inexpensive repairs, and that the agreed rental was paid.
There was an old stairway leading to the basement in which the plaintiff kept her wood and vegetables. She claims that it was necessary for her to use this stairway.. A short time before the accident, while plaintiff was going down this stairway the bottom step broke, by reason of which she fell but was not then injured. The complaint alleges that she then notified the defendant, through his agent, of the condition of the stairway and that he promised and agreed to make the necessary repairs immediately; that relying upon such promises she continued to use the stairway, taking reasonable care and precaution; that in fact the stairway was old, worn out and defective; that its condition was latent and concealed but should have been known and would have been known to the defendant with the exercise of reasonable care and diligence; that after receipt of the notice the defendant sent a carpenter to the premises for the purpose of putting the stairway in good condition so that it could be used safely for the purposes for which it was intended; that the carpenter made the required measurements and an estimate of the necessary material; that the lumber was then brought and placed upon the premises for the purpose of reconstructing the stairway. It appears that the lumber remained unused for about five days; that relying upon the promise of the defendant to repair, and from necessity, the plaintiff continued to use the stairway; that about the fifth day after the ma[228]*228terial was oh the ground, and without any fault or negligence on her part, while going down the stairway, the fourth step from the bottom broke, as a result of which she was violently thrown to the basement floor and sustained the injuries of which she complains.
The defendant contends that the plaintiff was injured as a result of her own carelessness and negligence, and that relying upon a tort she is not entitled to recover. The plaintiff testified:
“I told him it would have to be kept in repair or I could not live there, and he said they would keep it in repair.”
Mr. De Graff, agent for the defendant, when asked about the agreement to make repairs, replied
“Not that I reme'mber of, except as I said before, that we would not make any repairs to it unless it was absolutely necessary to make it habitable.”
The fact remains that the plaintiff used and occupied the building as a residence; that thé defendant took and accepted her monthly rental; that it was necessary to use the stairway in going to and from the basement; that the plaintiff testifies that she notified the defendant of the condition of the stairway prior to the accident and that he promised to make the necessary repairs; that he actually sent a carpenter and bought the material for that purpose; that the lumber was purchased and placed upon the ground at leas! five days before the accident.
Among others, the court gave the following instructions :
“The question of what is a reasonable time is for the jury to determine. * *
“Defendant would have a reasonable time, after knowing or being notified of the repairs, being necessary, in which to have made them, before he could [229]*229be held responsible for injuries resulting therefrom. * *
“If you find from the evidence the accident complained of was in any degree owing to the want of due care and caution on the part of the plaintiff directly contributing to said accident, then your verdict must be for the defendant. * *
“If you find from the evidence that the plaintiff knew the steps were unsafe and out of repair, but did not know that the particular step which broke was out of repair, then it is for you to determine from the evidence whether or not the plaintiff in venturing on the step which broke, without investigating its condition, was exercising due and ordinary care for her own safety. The plaintiff is not entitled, knowing or having good reason to suppose she was incurring danger in so doing, to go upon the steps, relying on the defendant being responsible for the steps being safe; but must act in a reasonable and prudent manner.
“You cannot find a verdict for plaintiff in any sum unless you determine, first, that there was a contract between plaintiff and defendant, or defendant’s agent, that defendant would make the repairs on the stairway. Second, that the defendant or his agent, the Portland Trust Company, after being informed and knowing the existence of the defect in the stairway, and promising to repair the same, failed to use that degree of diligence which a man of ordinary prudence would have used under like circumstances to repair the defect. Three, that the defect of which defendant or his agent was so notified or informed and so neglected to repair, was the cause of plaintiff’s injury.”
1. Under such instructions the jury found for the plaintiff and there is sufficient evidence to sustain the verdict.
We think the law of this case is laid down by the Supreme Court of Washington in Mesher v. Osborne, 75 Wash. 439 (134 Pac. 1092, 48 L. R. A. (N. S.) 917), where it is held:
[230]*230“In some of the earlier cases holding that an action of tort did not arise on a breach of the covenant in the case presented, the general expressions used would include the proposition that no such action could arise. But it is believed that, restricting those cases to the issue presented, there is nothing to exclude general harmony on the proposition where there is a covenant by the landlord to keep the premises in safe and tenantable condition, and the landlord has knowledge or notice of the existence of such defects as render the use of the property in the manner contemplated by the lease dangerous to the tenant, and the tenant, his guests or family, suffer personal injury therefrom after a reasonable time for making the premises sáfe, since such notice or knowledge, in the absence of contributory negligence, the landlord is liable to an action of tort therefor.”
2. The defendant called Mayme Kube, the head nurse of the hospital where the plaintiff was receiving medical care after her injuries, as a witness and asked her this question:
“What condition is indicated by the chart, or what do you know from personal memory of the facts, as to her obeying directions, or as to her being refractory!”
Upon an objection to this question, counsel for defendant stated:
“Our object is to explain as far as possible to what extent the condition we find is due to the injury and to what extent it is due to other things. It would all bear on the good faith of the patient, and explain the results. ’ ’
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JOHNS, J.
It appears that at the time of the leasing the building in question was very old, out of repair and in a dilapidated condition ■, that it was only a mat[227]*227ter of a short time until it would have to be torn down; that it was necessary that certain improvements should be made before it would be a fit or suitable place for habitation; that certain repairs were then made and during the three-year period of the leasing the landlord continued to make minor and inexpensive repairs, and that the agreed rental was paid.
There was an old stairway leading to the basement in which the plaintiff kept her wood and vegetables. She claims that it was necessary for her to use this stairway.. A short time before the accident, while plaintiff was going down this stairway the bottom step broke, by reason of which she fell but was not then injured. The complaint alleges that she then notified the defendant, through his agent, of the condition of the stairway and that he promised and agreed to make the necessary repairs immediately; that relying upon such promises she continued to use the stairway, taking reasonable care and precaution; that in fact the stairway was old, worn out and defective; that its condition was latent and concealed but should have been known and would have been known to the defendant with the exercise of reasonable care and diligence; that after receipt of the notice the defendant sent a carpenter to the premises for the purpose of putting the stairway in good condition so that it could be used safely for the purposes for which it was intended; that the carpenter made the required measurements and an estimate of the necessary material; that the lumber was then brought and placed upon the premises for the purpose of reconstructing the stairway. It appears that the lumber remained unused for about five days; that relying upon the promise of the defendant to repair, and from necessity, the plaintiff continued to use the stairway; that about the fifth day after the ma[228]*228terial was oh the ground, and without any fault or negligence on her part, while going down the stairway, the fourth step from the bottom broke, as a result of which she was violently thrown to the basement floor and sustained the injuries of which she complains.
The defendant contends that the plaintiff was injured as a result of her own carelessness and negligence, and that relying upon a tort she is not entitled to recover. The plaintiff testified:
“I told him it would have to be kept in repair or I could not live there, and he said they would keep it in repair.”
Mr. De Graff, agent for the defendant, when asked about the agreement to make repairs, replied
“Not that I reme'mber of, except as I said before, that we would not make any repairs to it unless it was absolutely necessary to make it habitable.”
The fact remains that the plaintiff used and occupied the building as a residence; that thé defendant took and accepted her monthly rental; that it was necessary to use the stairway in going to and from the basement; that the plaintiff testifies that she notified the defendant of the condition of the stairway prior to the accident and that he promised to make the necessary repairs; that he actually sent a carpenter and bought the material for that purpose; that the lumber was purchased and placed upon the ground at leas! five days before the accident.
Among others, the court gave the following instructions :
“The question of what is a reasonable time is for the jury to determine. * *
“Defendant would have a reasonable time, after knowing or being notified of the repairs, being necessary, in which to have made them, before he could [229]*229be held responsible for injuries resulting therefrom. * *
“If you find from the evidence the accident complained of was in any degree owing to the want of due care and caution on the part of the plaintiff directly contributing to said accident, then your verdict must be for the defendant. * *
“If you find from the evidence that the plaintiff knew the steps were unsafe and out of repair, but did not know that the particular step which broke was out of repair, then it is for you to determine from the evidence whether or not the plaintiff in venturing on the step which broke, without investigating its condition, was exercising due and ordinary care for her own safety. The plaintiff is not entitled, knowing or having good reason to suppose she was incurring danger in so doing, to go upon the steps, relying on the defendant being responsible for the steps being safe; but must act in a reasonable and prudent manner.
“You cannot find a verdict for plaintiff in any sum unless you determine, first, that there was a contract between plaintiff and defendant, or defendant’s agent, that defendant would make the repairs on the stairway. Second, that the defendant or his agent, the Portland Trust Company, after being informed and knowing the existence of the defect in the stairway, and promising to repair the same, failed to use that degree of diligence which a man of ordinary prudence would have used under like circumstances to repair the defect. Three, that the defect of which defendant or his agent was so notified or informed and so neglected to repair, was the cause of plaintiff’s injury.”
1. Under such instructions the jury found for the plaintiff and there is sufficient evidence to sustain the verdict.
We think the law of this case is laid down by the Supreme Court of Washington in Mesher v. Osborne, 75 Wash. 439 (134 Pac. 1092, 48 L. R. A. (N. S.) 917), where it is held:
[230]*230“In some of the earlier cases holding that an action of tort did not arise on a breach of the covenant in the case presented, the general expressions used would include the proposition that no such action could arise. But it is believed that, restricting those cases to the issue presented, there is nothing to exclude general harmony on the proposition where there is a covenant by the landlord to keep the premises in safe and tenantable condition, and the landlord has knowledge or notice of the existence of such defects as render the use of the property in the manner contemplated by the lease dangerous to the tenant, and the tenant, his guests or family, suffer personal injury therefrom after a reasonable time for making the premises sáfe, since such notice or knowledge, in the absence of contributory negligence, the landlord is liable to an action of tort therefor.”
2. The defendant called Mayme Kube, the head nurse of the hospital where the plaintiff was receiving medical care after her injuries, as a witness and asked her this question:
“What condition is indicated by the chart, or what do you know from personal memory of the facts, as to her obeying directions, or as to her being refractory!”
Upon an objection to this question, counsel for defendant stated:
“Our object is to explain as far as possible to what extent the condition we find is due to the injury and to what extent it is due to other things. It would all bear on the good faith of the patient, and explain the results. ’ ’
The court sustained the objection, upon the ground that such matters had not been pleaded as an affirmative defense. The defendant did not offer the chart in evidence and did not offer to produce any evidence as to who kept the chart or made the entries thereon, whether the chart was authentic or the purposes for [231]*231which it was kept. In First Nat. Bank. v. Oregon Paper Co., 42 Or. 398 (71 Pac. 144, 971), this court held:
“If the appellants were not allowed to prove their claims, they should have called witnesses, and stated to the court the testimony which it was expected would be elicited from them.”
After citing the above case with approval, the opinion in Columbia Realty Investment Co. v. Alameda Land Co., 87 Or. 277, 291 (168 Pac. 64, 68), lays down this rule:
“We think the better practice is to call the witnesses relied on and ask appropriate questions. If objections are sustained to these questions the time is ripe for an offer of proof.”
Assuming that the defendant could make this defense under general denial, there was no showing or offer as to what would have been the proof if the witnesses had been permitted to testify, and for such reason there was no error in sustaining the objection.
Every element of defense was fully covered by proper instructions and the vital question of fact was: What would be a reasonable time within which the defects in the stairway should have been repaired, after the defendant received notice of such defects? The jury found for the plaintiff. The judgment is affirmed. Aeeirmed. Adhered to on Rehearing.
McBride, C. J., and Bean, J., concur.
Olson, J., took no part in the consideration of this case, his term having expired.