31 N.W.2d 332 | Minn. | 1948
On December 22, 1945, plaintiff, who then had been a tenant for over 16 months on the second floor of defendant's apartment house in Brainerd, went to the second floor landing of the building's main entrance stairway to see if the postman had arrived with a letter. As she stepped to the edge of the top step, with her right hand on the stair railing, she saw the postman putting letters in the apartment mailboxes below. He announced that he had a letter for her. Lena Shaw, another tenant who was about to ascend from the first to the second floor, called to plaintiff that she would bring the letter to her. At the same moment plaintiff started down the stairs, and as she was in the act of stepping from the top step or landing to the next step below her feet shot out from under her in such a manner that she fell and landed in a sitting position and did not stop her descent until she reached the sixth step from the top. In falling, she sustained a fracture of the coccyx at the end of her spine.
Taking, as we must, the view of the evidence most favorable to the verdict, it appears that plaintiff at the moment she fell was standing on the top step, which, as to its outer or first six inches, consists of a six-inch board extending across the four-foot-wide stairway. This six-inch board forms a continuation of the second-floor landing, but is not exactly flush therewith, in that (without taking into consideration the additional slant or depression from wear) over its entire length it slants down and forward so that the front edge is one-half inch lower than the back edge. With respect to the center portion of the steps customarily used by people in passing up and down the stairway, the one-half-inch slant of the board itself has *499 been further increased and worn smooth through wear from constant usage, and this wear naturally has been greatest toward the front edge, which was worn smooth and round. At the extreme front edge in the center portion, the combined slant from the tilting of the board itself and from wear amounted to a total of one inch. In other words, there was an over-all forward slant of one inch in six for the width of the board, but, as noted, most of the slant was confined to the outer or front inch in the middle portion of the stairway. At the moment before she fell, plaintiff stood with the toes of her leather bedroom slippers even with, but not projecting beyond, the front edge of the top step. Her right hand was on the stairway railing. Under the state of the evidence, the jury could reasonably find that her feet were in the worn or central part of the top step.
1. We do not agree with defendant's contention that the verdict is not sustained by the evidence. It is conceded that defendant as landlord retained control of the stairway for the common use of all tenants in the building. A landlord who retains possession and control of stairways and similar building facilities for the common use of the tenants therein, although not an insurer of the safety of these facilities, owes a duty of exercising ordinary care to see that such stairways and facilities are originally constructed and subsequentlymaintained in a reasonably safe condition for the use of tenants who are themselves exercising ordinary care. The duty of maintaining these facilities in a reasonably safe condition continues throughout the entire period of common use by the tenants, and, in reasonable anticipation of the progressive deterioration of wood and similar substances through the passage of time and from the wear and tear of continual use, this duty necessarily implies and requires reasonable inspection from time to time. Generally speaking, any defective condition in the premises caused by wear from prolonged and continual use is brought into existence gradually and not suddenly, and although the landlord may not have had actual notice, it becomes a question of fact whether in the exercise of ordinary care he could have discovered the hazardous condition *500
and the unreasonable risk involved therein in time to make repairs for the reasonable safety of others. Anderson v. Winkle,
2. Defendant asserts that plaintiff was guilty of contributory negligence as a matter of law. There is nothing to show that she wore improper footwear. At and before the moment she fell, she had her right hand on the side railing. Although she was familiar with the defective condition of the stairway through long use, we cannot say as a matter of law that the defect in the top step was so obviously dangerous that a reasonably prudent person of plaintiff's age and in her condition of health would, while grasping the handrail, regard it as foolhardy to attempt to descend. Restatement, Torts, § 360a. She was not guilty of contributory negligence as a matter of law because she happened to be in poor health at the age of 66 years. Whether under all the circumstances she conducted herself with the ordinary care of a reasonably prudent person was an issue of fact for the jury. *501
3-4. Defendant assigns as error the action of the trial court in sustaining an objection to the following testimony by witness James Hervey:
"Q. During any of that time did you have any reports of any other accidents happening on that landing?
"A. No.
"Mr. Ryan: That is objected to as irrelevant to this case, and the Court has ruled on it.
"The Court: Objection sustained."
The court erred in sustaining the objection. Evidence of the absence of prior accidents resulting from the same physical defect or inanimate cause, under substantially similar circumstances, is admissible to prove that such defect or cause was not dangerous or likely to cause such accidents, and further to prove that the person responsible for the defective condition was not reasonably chargeable with knowledge of its dangerous character. Doyle v. St. P. M. M. Ry. Co.
Upon cross-examination, plaintiff's witness Lena Shaw was asked if she had "ever heard of anybody else falling on that stairway." An objection thereto was sustained. This broad question was not restricted in its application to prior accidents arising from the same inanimate cause, but applied to any accidents occurring on the stairway regardless of their cause, and was therefore inclusive of collateral facts, which ordinarily are admissible only in the court's discretion according to the facts of the particular case. Henderson v. Bjork Monument Co. Inc.
5. The jury was instructed that defendant owed the duty "to use that care which an ordinarily reasonable and prudent person would use in the same or similar circumstances to keep and maintain the stairs * * * in a reasonably safe condition." Defendant's request that the jury be also charged that defendant was "not an insurer of the safety" of the premises was denied. Although defendant's request was entirely proper and, if granted, would by contrast have reasonably contributed to the clarity of the charge, we cannot say that the trial court's refusal so to instruct was erroneous or prejudicial. Implicit in the court's instruction that defendant owed a dutyto use the care of an ordinarily reasonable and prudent personto maintain the premises in a reasonably safe condition is a meaning that negatives any thought that the landlord is an insurer of the safety of the premises. The jury could not possibly infer from *503
the charge that defendant owed any greater duty than that of reasonable care. A charge that presents to the jury the applicable law in clear, precise, and intelligible form so as to leave no reasonable likelihood for the drawing of erroneous inferences therefrom is sufficient, and it need not be buttressed by the express exclusion of nonapplicable principles of law. Parson v. Lyman,
6. The jury's verdict was for $4,000. Plaintiff sustained a fracture of the coccyx, together with a forward displacement of a portion thereof, causing her at times to suffer excruciating pain upon sitting down. At the time of the trial, nearly a year after the injury occurred, she still suffered sharp pains and aches in the lower spine. She was confined to the hospital for 42 days, and for 60 days thereafter she required the assistance of a personal attendant in her apartment. Her expenses amounted to $457.65. The jury was justified in taking into consideration the present low value of money and the high cost of living. Heitman v. City of Lake City,
Affirmed. *504