FAHY, Circuit Judge.
Appellants, husband and wife, whom, we shall usually refer to as plaintiffs, sued in the District Court to recover damages from the appellees, defendants, for serious injuries suffered by the wife in May, 1949. She fell into an areaway from steps leading to the street from the front door of premises she and her husband occupied as tenants. Defendant Fletcher is the landlord or lessor of the premises.1 Defendant Fred S. Gichner Iron Works, Inc., usually referred to herein as Gichner, in 1942 had repaired the railing of the steps. The complaint alleges that the repair was negligently and carelessly performed, as a result of which the railing gave way, causing the wife to lose her balance and fall into the areaway.
After answer the case was called for trial. Upon completion of the opening statement of counsel for plaintiffs, in which he set forth the facts he expected to be able to prove, the court ruled that regardless of whether or not these facts could be proved there was nothing for the jury to decide because, as matter of law, the defendants would not be liable. The court thus permitted no evidence to be introduced. We think this was error, because the facts set forth in the opening statement, if proved and not rebutted by defendants, made out, under the legal principles hereinafter set forth, a case upon the basis of which the jury, though not required to do so, validly could have reached the conclusion that Gichner was negligent and that such negligence was a proximate cause of the accident to Mrs. Hanna. If so, for reasons hereinafter stated, a case for jury consideration was also stated against the defendant Fletcher, the landlord.
The opening statement represented that plaintiffs would prove, in addition to their tenancy, the following facts. In 1942 the cast iron front steps were in a general state of disrepair. The railing on the right as one faces the house had fallen down. Plaintiffs requested the landlord to have the steps repaired. The landlord undertook to do 'so. She engaged Gichner, an iron contractor, to repair the steps “as necessary.” This Gichner undertook to do. Because of the allegedly negligent manner in which Gichner made the repairs, as plaintiffs offered to prove, Mrs. Hanna was caused a fall when, in descending the stairs, she leaned upon the rail and it gave wayj The steps were cast iron and descended from the front of the house to the sidewalk, crossing over a basement areaway between the wall of the house and the sidewalk. Railings were located on each side of the steps to prevent those using the steps.from falling into the areaway. These railings were iron pipes running diagonally from newel posts on the top step to other newel steps on the bottom step. The railings were fitted into collars and were thereby affixed to the newel posts. The newel posts did not support the railings or take the stress of forces applied against the railings. The newel posts were hollow. An anchor rod passed down through the newel posts, pierced the surface on which the newel posts rested, and was then nutted on the under side of this surface. The anchor rod thus held the rail upright, maintaining it rigid and taking the stress and strain of forces applied to the railing. The [471]*471right hand railing collapsed in 1942 because the anchor rod holding the lower newel post had rusted through where it pierced the bottom tread. The rusting process of the rod deposited a quantity of rust on the bottom tread under the flange of the newel post. When the railing gave way it was torn from its collar on the upper newel, breaking the collar. At this time the steps were in a state of general disrepair; they rattled and were loose. The rear edge of the bottom tread, which should lock over its foundation, was broken off. The foundation riser under this tread did not have proper support. These two conditions caused the tread when stepped upon both to sag and to tilt forward. The sagging would cause the newel post to be pulled inward and the tilting would cause it to be pulled forward. Both actions would place a stress and strain upon the anchor rod at the point at which it was subjected to rusting.
The opening statement also described Gichner’s negligence. Gichner’s 1942 repairs consisted merely of replacing the bottom anchor rod and welding the railing into the broken upper collar. These two things were inadequate to put the steps and railing into a safe condition and failed to meet good iron construction standards. The deposit of rust from the old anchor rod was not removed. The newel post was re-erected upon it. This deprived the post of a steady base, and, more important, prevented the flange of the newel post from gaining a tight seat against the tread. 'The flange was held away from the tread ,by the presence of the rust. This rust and the fracture of the old rod were a warning that any anchor rod in the lower right newel was subject to attack from .a drainage of rain and melting ice and snow. Rust deposits are themselves absorbent. By failing to remove the rust deposit, Gichner allowed an open seam to remain between flange and tread. This permitted future drainage to attack the rod within, and the absorbent quality •of the rust assured that for a considerable period of time the anchor rod would be encased in a wet bandage.
Plaintiffs offered to prove further that good iron repair techniques would call for the removal of the old rust deposit by chipping or scraping, which would have afforded the newel a firm tight seat on the tread. Whatever seam remained should then have been caulked or bead-welded so as to make the newel watertight. Instead, the new anchor rod was left open to the attack of drainage which was to lead inexorably to new rusting. Moreover, no proper foundation was provided under the bottom tread, nor was the rear edge of this tread locked. As a result the sag and tilt of the bottom step continued, thereby causing the anchor rod to be subjected to unusual and unnecessary stresses at its weakest point. Finally, when the railing was welded into its broken upper collar the hole caused by the break was not completely filled. A sizable opening remained on the upper side of the collar through which rain water could and did enter. It would be caught by the interior of the pipe railing and conducted into the lower right newel. This failure to seal the opening permitted the railing to act as a conduit of water into the newel which held the sensitive anchor rod. These inadequacies of repair, by permitting the processes of oxidation to waste the substance of the new anchor rod so that it rusted through at the very place of the old break, led to the fall of the plaintiff Helen Hanna on May 2, 1949.
The opening statement charged that the defendant Gichner by reason of the shortcomings of its repairs created an inherently dangerous condition which was not apparent to the untrained and which imperiled the safety of those having occasion to use the railing in reliance upon its strength and security. The defendant Fletcher, the landlord, was charged with liability for creating an unsafe condition upon leased premises.
I. We are faced initially with the problem of the statute of limitations. [472]*472The applicable provision of our Code prescribes the period of limitations as,
“* * three years from the time when the right to maintain any such action shall have accrued. * * * ” § 12-201, D.C.Code 1951.
Defendants contend under this provision that the three years began to run in .1942 when the repairs were made, and since the suit was not filed until December 28, 1950, it was barred. Plaintiffs on the other hand contend that the “right to maintain” the action did not accrue until the accident resulting in the injuries occurred on May 2, 1949, and that the suit, filed within three years thereafter, was timely. We agree. The Code is controlling. The action against Gichner plainly is based on negligence, sounds in tort, and did not accrue until injury resulted from the alleged negligence. Poole v. Terminix Co., 91 U.S.App.D.C. 287, 200 F.2d 746, is not apposite; it was an action for property damages due to breach of an implied warranty to do a workmanlike job. There the suit would have been timely if the limitations period were measured from the time the damage was discovered. The court held, however, that the suit was barred because the cause of action accrued when the warranty was breached, more than three years before the action was filed.2 The policy of the law to bring repose was given effect. Here, however, the alleged negligence did not ripen into a cause of action until Mrs. Hanna was injured. We cannot shorten the time the Code allows by adding a provision that the personal injury essential to the accrual of the cause of action must occur within three years of the negligence. Foley v. Pittsburgh-Des Moines Co., 363 Pa. 1, 38-39, 68 A.2d 517, 535; Fredericks v. Town of Dover, 125 N.J.L. 288, 15 A.2d 784; Kitchener v. Williams, 171 Kan. 540, 236 P.2d 64; cf. Federal Reserve Bank of Atlanta, for Use of American Surety Co. of New York v. Atlanta Trust Co., 5 Cir., 91 F.2d 283, 117 A.L.R. 1160, certiorari denied, 302 U.S. 738, 58 S.Ct. 140, 82 L.Ed. 571.
As to the landlord Fletcher the case in the end is no different. In our view, as. hereinafter appears, the action against the landlord is also in tort. Therefore, what we have said as to Gichner applies.3
II. We come to the question whether the opening statement made a case to go> to the jury against Gichner on both negligence and proximate cause. If wanting-in either respect the directed verdict was-correct. As to negligence, Gichner’s. chief contention is that even if it be assumed that its repair work was negligently done, its responsibility was only to Fletcher, the landlord, with whom Gichner contracted, and not to Mrs. Hanna, the injured tenant. Ford v. Sturgis, 56 App.D.C. 361, 14 F.2d 253, 52 A.L.R. 619, certificate dismissed per curiam, 266 U.S. 584, 45 S.Ct. 126, 69 L.Ed. 453, is relied upon as laying down the rule in this jurisdiction that “the negligence of a contractor in constructing a building will not render him liable to a third person, who is injured in consequence thereof after the work has been completed and accepted by the owner of the building.” Id., 56 App.D.C. at page 362, 14 F.2d at page 254. The authorities adduced to support a rule so stated rely principally upon the absence of privity of contract between the contractor and injured third party. The court also mentioned as a reason sometimes given “that otherwise there would be no end of suits,” adding, however, that “It is elsewhere given as a better ground that the negligence of the owner in maintaining the defective building, and not that of [473]*473the builder in constructing it, is the true proximate cause of the third person’s injury. Wharton on Negligence, § 439.” 4 Ibid. None of these reasons furnishes .adequate ground for applying to this case a rule that the contractor may not be held liable to the tenants.
The view that such liability is precluded because there is no privity of contract between Gichner and the tenants is at ■variance with the principle discussed by Judge Cardozo in MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050, 1053, L.R.A.1916F, 696, decided in 1916. Like that decision, we also,
“ * * * put aside the notion that the duty to safeguard life and limb, when the consequences of negligence may be foreseen, grows out of contract and nothing else. * * * ” 217 N.Y. at page 390, 111 N.E. at page 1053.
As to the concern that there would be -no end of suits if the contractor might be held liable, there would seem to be all the ends which the law should require. Negligence must be proved. It must be proved to be the proximate cause •of the injury. Contributory negligence is a defense. The plaintiff must be within the class protected, that is, one as to whom “the consequences of negligence may be foreseen.” Liability exists only upon a reasonable basis consistent with rules properly applicable in tort litigation.
The view that the contractor may mot be held liable to the tenants because the proximate cause of injury is not his negligence but that of the owner in maintaining the premises, turns upon a question of fact, not of law. The cause must be decided on the facts, not by a legal fiction set up to bar a factual decision. As was said in Munsey v. Webb, 37 App.D.C. 185, 189, affirmed 231 U.S. 150, 34 S.Ct. 44, 58 L.Ed. 162:
“ * * * ‘The true rule is that what is the proximate cause of an injury is ordinarily a question for the jury. It is not a question of science or of legal knowledge. It is to be determined as a fact, in view of the circumstances of fact attending it. * * * ’ ” (The interior quotation is from Milwaukee & St. P. R. Co. v. Kellogg, 94 U.S. 469, 474, 24 L.Ed. 256.)
We return to consider further MacPherson v. Buick Motor Co., supra. A manufacturer of automobiles sold one of his cars to a dealer who in turn sold it to plaintiff. The question was whether the manufacturer could be held liable to plaintiff for injuries resulting from a sudden collapse of the car due to defective wood used in one of its wheels; that is, as the court stated, “whether the defendant [manufacturer] owed a duty of care and vigilance to any one but the immediate purchaser.” The court held it did owe such a duty, saying,
“ * * * If the nature of a thing is such that it is reasonably certain to place life and limb in peril when negligently made, it is then a thing of danger. Its nature gives warning of the consequences to be expected. If to the element of danger there is added knowledge that the thing will be used by persons other than the purchaser, and used without new tests, then, irrespective of contract, the manufacturer of this thing of danger is under a duty to make it carefully. That is as far as we are required to go for the decision of this case. * * * ” 217 N. Y. at page 389, 111 N.E. at page 1053.
As Circuit Judge Phillips has said for the Tenth Circuit in Spencer v. Madsen, 142 F.2d 820, 823, this decision,
“ # * ■» has received wide spread judicial approval and may now be regarded as stating the generally accepted law on the subject * * * 99
citing United States Radiator Corp. v. Henderson, 10 Cir., 68 F.2d 87, certiorari [474]*474denied 292 U.S. 650, 54 S.Ct. 860, 78 L.Ed. 1500; Stevens v. Allis-Chalmers Mfg. Co., 151 Kan. 638, 100 P.2d 723; Restatement, Torts, §§ 395, 396. See also Moran v. Pittsburgh-Des Moines Steel Co., 3 Cir., 166 F.2d 908, certiorari denied 334 U.S. 846, 68 S.Ct. 1516, 92 L.Ed. 1770; Foley v. Pittsburgh-Des Moines Co., supra.5
The bridge described in the MacPherson case between the manufacturer of an article and its third party user, not in privity of contract with the manufacturer, is the same as that between a landlord’s contractor or repairman and the tenant of the premises repaired; for in each case negligent conduct often may be expected to result in injury to one reasonably foreseen as a probable user. Here the tenants were to use the steps, not the landlord, as in MacPherson the ultimate purchaser was to use the car, not the dealer. See Restatement of Torts, § 385; Holmes v. T. M. Strider & Co., 186 Miss. 380, 189 So. 518, 123 A. L.R. 1190; Williams v. Charles Stores Co., 209 N.C. 591, 184 S.E. 496. In view of these developments in the law, so widely approved and so sound, we reject Ford v. Sturgis insofar as it stands for the general rule that a person injured by reason of a contractor’s negligence cannot recover from the contractor if the injury occurred after the product of his defective work was accepted by the party who engaged him. See Carter v. Yardley & Co., Ltd., 319 Mass. 92, 64 N.E.2d 693, 164 A.L.R. 559, and Todd Shipyards Corporation v. United States, D.C.D.Me., 69 F.Supp. 609, and authorities cited therein.
Here there is no question from the opening statement, which in the present posture of the case we must consider as including the inferences properly drawn therefrom, see Pomeroy v. Pennsylvania Railroad, 96 U.S.App.D.C. 128, 223 F.2d 593, that if Gichner’s repair was so negligently performed as to cause the railing to become insecure, there arose a probably dangerous physical condition. The railing was essential to the safe use by the tenants of the steps over the area-way. Use of the steps would be reasonably certain to place life and limb in peril unless the railing were secure. The consequence to the tenants of negligence in repair could be foreseen. Thus there were present the elements required to give rise to an obligation on Gichner’s part to avoid negligence which would endanger the tenants in their dependence upon the railing. Of course we do not say there was negligence; the offers made in the opening statement might not materialize in essential respects in the evidence, or might be rebutted. Furthermore, even if the facts offered to be proved were established it would still remain for the jury to decide whether or not they constituted negligence.
If a porch stands for seven years and then collapses the fact that it had stood for seven years would not eliminate negligence as the cause of its collapse. One could illustrate in a variety of ways that use for some years without accident of a part of a dwelling, such as a porch or protective railing, would not in and of itself completely rebut the fact of negligence in its construction or repair. Such use without injury is to be considered in resolving the issue of negligence; but so also is proof of actual defective workmanship. There is here no mere deterioration due to use and the elements. As we have seen, the opening statement contains detailed specifications of omissions and negligent acts in the course of the repair work. Whether true or not we do not know; that was for proof at a trial, and then for jury consideration with the other evidence. It was not necessary for plaintiffs to state, in addition, how long the railing should have lasted, once they had stated that while Mrs. Hanna was using it the railing gave way to her injury because of the specified negligent repair by Gichner. In other words, negligence need not be stated in [475]*475all possible ways. It can be stated in the way plaintiffs say it actually occurred. Here this was done, in detail, not by generalizations. Plaintiffs’ offer fairly construed included proof that the workmanship fell below proper construction standards. As a matter of fact Gichner’s principal contention is not that negligence was not stated but that the tenants have no cause of action for injuries due to its negligence, since its contract to repair the railing was only with the landlord. Having rejected this theory of the case as out of line with well established principles of law, we hold that, on the basis of the opening statement, there was a factual issue for the jury to decide whether or not negligence could be attributed to Gichner in making the repairs.
There remains the important question whether the jury could validly find on the basis of the opening statement that such negligence was a proximate cause of the accident. Proximate cause is ordinarily a jury question. This has long been settled in this jurisdiction. See Munsey v. Webb, supra, and Washington, A. & Mt. V. Ry. Co. v. Lukens, 32 App.D.C. 442, 454-455, where it is said:
“ * * * Without reviewing the many cases bearing on the vexed question of proximate and remote cause, we content ourselves with referring to the following eases which hold that what is the proximate cause of an injury or loss in actions of this kind is ordinarily a question for the jury: Milwaukee & St. P. R. Co. v. Kellogg, 94 U.S. 469, 474, 476, 24 L.Ed. 256, 258, 259; Guenther v. Metropolitan R. Co. 23 App.D.C. 503, 510 [6]; Schumaker v. St. Paul & D. R. Co. 46 Minn. 39, 43, 12 L.R.A. 257, 48 N.W. 559. The facts of this present case bring it within that rule. See also Lindsey v. Pennsylvania R. Co. 26 App.D.C. 503, 3 L.R.A.(N.S.) 218, 6 A. & E. Ann.Cas. 862. * * *"
And in Howard v. Swagart, 82 U.S.App. D.C. 147, 151, 161 F.2d 651, 655, the court, in part quoting from S. S. Kresge Co. v. Kenney, 66 App.D.C. 274, 275, 86 F.2d 651, 652, stated:
“ * * * this court has defined the proximate cause of an injury to be ‘that cause which, in natural and continual sequence, unbroken by any efficient intervening cause, produces the injury and without which the result would not have occurred.’ * * •*»
See, also, LeFoe v. Corby Co., 38 App.D.C. 54, 61-62; Richmond, F. & P. R. Co. v. Brooks, 91 U.S.App.D.C. 24, 26, 197 F.2d 404, 406, certiorari denied 344 U.S. 828, 73 S.Ct. 31, 97 L.Ed. 644.
We cannot say as matter of law that the fault of Gichner, assuming it were proved, was not a cause which in natural sequence, unbroken by any efficient intervening cause, produced the injury. Of course the jury could find for Gichner in this regard; but the law itself does not say that the passage of nearly seven years, or the action of the elements, with respect to a facility built for use while constantly exposed to the elements, constituted an efficient intervening cause of the giving way of the railing, so that any causal connection between Giehner’s negligence and the giving way was necessarily broken. Over and above the normal effect of use and the elements it was here clearly stated that specified defects in the repair caused conditions which precipitated the accident at the time it occurred. This was the case stated. In these circumstances the law says, we think, that the question of proximate cause is one of fact for the jury. Moreover, as we have indicated elsewhere, negligence on the part of the landlord, or of the tenant, in failing to maintain the railing in good condition, whichever had the responsibility, while it may be considered by the jury in determining proximate cause, is not by virtue of law itself, regardless of the [476]*476facts as a whole, an intervening cause which lifts all responsibility from Gichner’s shoulders. However heavy the plaintiffs’ burden of proof in bringing home proximate cause to Gichner’s negligence, the problem is within the realm of facts for the jury and not of law for the court except as the court must guide the jury by appropriate instructions.
To hold that the issue of proximate cause, as well as the issue of negligence, was for the jury, is not to make the contractor an insurer. On the contrary, the issues of fact upon which liability depends are open. Once we accept the rule followed by courts generally, in rejecting the notion that even though a contractor’s negligence is the proximate cause of an injury to a tenant who is foreseen to be the one who is to use the repaired facility, nevertheless the contractor cannot be held liable because his repair contract is with the landlord, the facts offered to be proved bring this case within the general pattern of tort litigation proper for jury trial.
III. We come now to the question of the landlord’s liability. The only theory presented by appellants is that since Gichner’s repair work created an unsafe condition upon the premises the landlord is liable under the doctrine of Bailey v. Zlotnick, 80 U.S.App.D.C. 117, 149 F.2d 505, 162 A.L.R. 1108. This puts aside the question whether, notwithstanding Bowles v. Mahoney, 91 U.S.App.D.C. 155, 202 F.2d 320, certiorari denied 344 U.S. 935, 73 S.Ct. 505, 97 L.Ed. 719, the landlord should be held liable because of an obligation to keep the premises in repair. In Bowles v. Ma-honey it is stated that the lessor, absent any statutory or contractual duty, is not responsible for any injury resulting from a defect which developed during the term.7 Judge Bazelon, dissenting, thought this rule should be abandoned, saying the court should “cast the presumptive burden of liability upon the landlord” in the absence of a contrary arrangement for the tenant to make repairs. In the case at bar the court sitting en banc is not called- upon to choose between these conflicting views, for appellants do not request this.8 They argue for application of the more limited rule set forth in Bailey v. Zlotnick, supra [80 U.S.App.D.C. 117, 149 F.2d 506]. Here, as there, the landlord undertook to have the repairs made and employed an independent contractor to make them. Bailey v. Zlotnick held that, notwithstanding it was the tenant’s duty to repair and there would have been no violation of the landlord’s duty had the plaster which caused the injury fallen through mere neglect, the landlord was “under a duty not to create an unsafe condition on the premises either permanent or temporary by any affirmative action on his part.” Such affirmative action was attributed to him when his contractor created the condition. This is another way of saying that when the negligence of the landlord’s contractor is the proximate cause of the injury, the landlord as well as the contractor may be found liable if the injury is not due to the negligence of the contractor in the actual performance of the details of the work but is due to “the condition of the premises which results from the negligence.” 9 See, partic[477]*477ularly, note 4, Bailey v. Zlotnick. In the case at bar, the injury clearly was caused by the “condition of the premises” rather than by Gichner’s “performance of the details of the work.” The landlord urges, however, that here, in contrast with Bailey v. Zlotnick, no unsafe condition of the premises was created even if Gichner was negligent, because the railing was already unsafe when Gichner undertook its repair. But if the landlord’s contractor left the railing in an unsafe condition, the existence of such a condition prior thereto is immaterial. Of course the landlord will not be liable unless the jury finds that the injury to the plaintiff occurred as a consequence of Gichner’s negligence. But we cannot on the one hand hold, as we do, that Gichner might be found liable in tort for having negligently left the railing in such condition as would probably be certain to place the life and limb of the tenants in peril, and on the other hand hold, with respect to the landlord, that this condition was not an unsafe one within Bailey v. Zlotnick. It is true this makes the responsibility of the landlord like that of the contractor where the condition of the premises, brought about by his contractor, is the cause of the injury. But we see no objection to this. The responsibility is not a broad one. The principles of the MacPherson case, though applied to a contractor as well as to a manufacturer, as has been generally done by the courts, are limited to the negligent creation of danger which results in injury to one whom the author of the danger ought to be on guard to protect. Furthermore, there is left to the landlord the opportunity to convince the jury that the proximate cause of the injury was not the unsafe condition of the premises.
Reversed and remanded for further proceedings not inconsistent with this opinion.