Honnemeyer v. Fischer

17 Ohio C.C. Dec. 8

• Court: Ohio Circuit Courts
• Decided: January 10, 1905
• Status: Published

Opinion

GIFFEN, J.

The injury to furniture in a dwelling house resulting from replacing the old roof with a new one, is one that might be anticipated as a direct or probable consequence of the performance of the work, if reasonable care is omitted in selecting the time of performance, and hence, the doctrine that the independent contractor is alone responsible does not apply. Railway v. Morey, 47 Ohio St. 207 [24 N. E. Rep. 269; 7 L. R. A. 217].

Where the testimony shows that the injury occurred to the tenant’s furniture by reason of the negligence of removing the roof at a time when the landlord knew that a heavy storm was impending, he is liable, notwithstanding the storm was an unprecedented one, for the reason that the original negligence was the proximate cause, and the unusual storm merely increased the amount of the damages. 1 Am. & Eng. Enc. Law (1 ed.) 592.

The plaintiff was therefore entitled to recover, although we think the damages awarded by the jury were excessive, and-that the actual loss was not in excess of $50.

The court erred in charging the jury that the burden of proof was on the defendant to establish by a preponderance of the evidence that the plaintiff owed $12.50 for rent, when the allegation was not controverted by a reply or otherwise. Laning R. L. 8596 (R. S. 5081). Deducting the amount of rent from the $50, the balance of $37.50 is ail the plaintiff should recover.

If he will consent to a remitittúr of all in excess of $37.50, the judgment will be affirmed; otherwise, reversed and cause remanded for a new trial.

Jelke and Swing, JJ., concur.