Lamson v. Andrews

40 App. D.C. 540 | D.C. Cir. | 1913

Mr. Justice Kobb

delivered the opinion of the Court:

It is first assigned as error that the court admitted evidence ■offered by the defendant, tending to show “how extensive the use of Lull & Porter hinges was in the years 1893 and 1898.” The plaintiff had herself shown the erection of a portion of this building in 1893 and another portion in 1898; that both portions were equipped with blinds having the Lull & Porter hinge. She had called expert witnesses to testify that this hinge was deficient and dangerous, and that its use on outside blinds facing the street was not consistent with good construction. To meet this evidence, the defendant introduced, without objection, evidence tending to show that the Lull & Porter hinge, “as used on said Grafton Hotel, was not deficient or dangerous in either of the respects claimed by the plaintiff, as aforesaid;” that this hinge was in general use in 1893 and December, 1908, and was one of the oldest standard known hinges. This evidence, as above noted, was introduced without objection, and was fairly responsive to that in behalf of the plaintiff. The idea had been conveyed to the jury by the plaintiff, through her expert witnesses, that the use of this hinge in 1893 and again in 1898 “was not consistent with good construction;” that it was a defective and dangerous hinge in the respects pointed out by the witnesses. Clearly, evidence tending to show that this hinge “was one of the oldest standard known hinges” in general use in 1893 and 1898, when these two portions of the hotel building were erected, had some bearing upon the question whether the use of such a device was consistent with good construction. If it was a standard hinge and in general use, that fact would tend to negative the expert evidence introduced by the plaintiff. All this evidence related to a particular device used in a particular way, and not to a similar device used under similar conditions. Moreover, inasmuch as the testimony to which the exception specifically relates did not differ materially from that already introduced without objection, it is difficult to perceive wherein the plaintiff was injured.

The second assignment of error relates to the introduction of evidence showing the reputation of the architect and builder of the hotel building in 1893. Evidence as to their reputation had already been introduced without objection, nor was any motion subsequently made to strike out that evidence. We cannot say, therefore, that the plaintiff was injured by evidence to-the same effect, subsequently introduced.

The plaintiff requested the court to instruct the jury that “in determining the question whether the blind which fell was sufficiently affixed, and kept sufficiently affixed, such as would be done by a person of ordinary care and prudence, they should take into consideration the height of said fifth story above the ground, and the proximity of the building to the street;” that the degree of care to be exercised in such a situation may differ from the degree of care to be exercised in affixing and keeping blinds upon lower buildings and buildings more removed from the street. The refusal of the court to grant this instruction is assigned as error. In the course of the charge the court said: “Of course, you are to take into consideration the situation of this building with reference to the street, how far it was from the street, how high it was, and what damage was liable to be done if a blind should fall. You are to consider this question of reasonable care and prudence with respect to the situation exactly as it was there.” No jury eould fail to understand that the location of this building, its height, and the possible result of the fall of a blind, were elements to be considered in determining the question of reasonable care and prudence.. The charge given substantially embodied the ideas contained in the charge proposed.

The last assignment of error is based upon the refusal of the court to grant plaintiff’s third prayer, to the effect that the-defendant could not relieve herself from liability to the plaintiff for injuries sustained by the plaintiff as the result of the defective hinge, if such they should find it to be, by reason of' the covenants in defendant’s lease of the premises to Mills, whereby Mills contracted to repair and keep in repair said premises. The court explained to the jury that the defendant was. not in the actual possession or control of these premises at the-time of the accident, having leased them to Mills for a period of ten years, beginning December 1, 1898. The court then said: “The plaintiff does not seek to recover on the ground that Mrs. Andrews was bound to watch the condition of affairs-there from day to day, and to know whether the premises were safe or not, after that lease began on December 1st, 1908. That is not the position the plaintiff takes in law. But the position the plaintiff takes is this: That on December 1st, 1908, when this lease began, the premises were in the same condition with respect to blinds and fastenings and the safety or want of safety in those blinds and fastenings that it was when this accident happened; and that she leased the house in that unsafe, condition, with authority in the tenant to continue that condition, and with the expectation on her part that he would use the property in its then condition so far as the blinds were concerned.

“So that, you see, the question is, what was the condition on the 1st day of December, 1908 ? What was her duty at that time? What did she know then as to the safety or want of safety of these premises, and what should she have known, as a reasonably prudent owner of the premises, in regard to these matters at that time ? . . . When Mrs. Andrews leased this property, which you are to take as the 1st day of December, 1908, it was her duty to exercise the care and prudence of a reasonable person,—a person of ordinary care and prudence in the circumstances,—to see that her building, as it was equipped with blinds, did not constitute a menace to the people passing along the sidewalk.” The court, further on in its charge, again stated the measure of defendant’s responsibility, .and in closing the charge, mentioned that it had come out in the evidence that another action, growing out of the accident, had been brought by the plaintiff, against the tenant. The court then said: “You are not to consider that at all. It has no bearing whatever upon this case. If there is a recovery here, if she recovers her damages here, that case will go for nothing. It has no effect upon this case at all. Whether the action should have been against the tenant or against Mrs. Andrews was a question of law for the court, with which you are not concerned at all. So you will simply dismiss that matter from your mind.” It is clearly apparent that the jury fully understood that they were to determine, upon the evidence submitted, whether the defendant had fulfilled her duty in the premises; and that if they were satisfied she had not, the plaintiff was entitled to recover, irrespective of the lease to Mills.

Finding no error in the record, the judgment must be affirmed, with costs. Affirmed.

A motion for a rehearing was overruled October 7, 1913.