Reinagel v. Walnuts Residence Co. , 239 Mo. App. 701 ( 1946 )

I cannot agree that the evidence in this case proves, as a matter of law, that the garage, as constructed, is not inherently dangerous. Plaintiff's evidence is to the effect that the part of the garage which he was required to use, and had the right to use, was "pitch dark" when the electric lights were not on, and that in that section of the garage there was an abrupt elevation from 6 to 8 inches in height, referred to as "the island." It is my opinion that it would be a question for the jury whether this abrupt elvation, so located, would constitute an inherently dangerous condition such as would require the defendant to provide sufficient light to expose the obstruction.

The general rule applicable to the facts in this case is well stated in 32 Am. Jur., p. 576, Sec. 701, where the author declares:

"The common-law liability of a landlord for the safe condition of approaches to, and the stairs and hallways in, premises used in common by different tenants, does not ordinarily require him to keep the ordinary halls and stairways lighter, and hence he is not ordinarily liable for injuries received by reason of the unlighted condition of this portion of the premises. However, ifthe construction of a stairway is such as to require artificiallight, even in ordinary times, in order to make the use of thehall and stairway safe, the landlord may be held liable fornegligence in failing to keep it lighted. Likewise, where the landlord assumes the duty of keeping a hall or stairway lighted, he is liable for personal injuries due to the unlighted condition of the hall, if that condition is ascribedable to his negligence." (Italics supplied.)

In Lampert v. Jones, 339 Mo. 677, the Supreme Court discussed at length the duty of a landlord to keep lighted common passageways for the benefit of tenants and visitors or employees, and held that the landlord in that case was not liable because (690):

"Second: There was no evidence sufficient to show any condition inherently dangerous in the construction or arrangement of this stairway, and there was no unguarded elevator well or other hole, trap, or dangerous obstruction therein from which a duty to light the stairway might arise whether he assumed it or not." (Italics ours.)

It is my opinion that the evidence in the present case makes an issue of fact whether the condition of the garage floor was an inherently dangerous arrangement, because there was adangerous obstruction, hidden by darkness, immediately in the path of those who were required and expected to use that part of the garage.

The fact that the plaintiff knew of such condition would not be decisive of the question whether the arrangement was inherently dangerous. Such knowledge should be considered only in connection with the question of contributory negligence and the assumption of risk.

I do not understand that plaintiff's instruction No. 1 submits his case on the theory that the construction and arrangement, without lights, created an inherently dangerous condition, but rather submits it on the theory that the defendant had assumed the duty of furnishing necessary lights and negligently failed to do so. Therefore, his judgment could not be affirmed, even on my theory, because it was not so submitted to the jury. I concur in the final result reached in the majority opinion.