#### George Pyzik, Appellee, v. Marie Ferke and City of Chicago, on appeal of Marie Ferke, Appellant.

Gen. No. 21,845.

(Not to be reported in full.)

Appeal from the Superior Court of Cook county; the Hon. M. L. McKinley, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.

Reversed and remanded.

Opinion filed December 19, 1916.

Rehearing denied January 3, 1917.

Statement of the Case.

Action by George Pyzik, plaintiff, against Marie Ferke and City of Chicago, defendants, for personal injuries sustained by the plaintiff as the result of his falling into a coal hole in the sidewalk in front of Marie Ferke’s premises. From a judgment for plaintiff for $3,750, defendant Marie Ferke appeals.

Louis S. Gibson, for appellant.

Aaron R. Eppstein and Sidney Lyon, for appellee.

Abstract of the Decision.

Landlord and tenant, § 260 * —when instruction as to liability for dangerous condition of sidewalk improver. In an action for personal injuries sustained by the plaintiff as the result of his falling into a coal hole in the sidewalk in front of the defendant’s building, where the evidence tended as much to show joint use of the cellar under the coal hole by two of the defendant’s tenants as to show joint use by her and one of her tenants, an instruction that “where there is an opening through a public sidewalk into a cellar underneath, and that such cellar is used in common by two or more persons who are tenants or occupants of the land or buildings adjacent thereto, then it becomes the duty of the owner of such land *266or buildings to use reasonable care to keep and maintain the said opening and its cover in reasonably safe condition for persons traveling upon the highway,” held erroneous as the verdict, which was returned in favor of the plaintiff, may have been based on the assumption of liability on the part of the defendant although she retained no control over the cellar in question.

*

See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

*265Mr. Presiding Justice Barnes

delivered the opinion of the court.