McCullagh v. Fortune , 76 N.D. 669 ( 1949 )

Plaintiff brought this action to recover damages for personal injuries which it is alleged she sustained on March 11, 1947, by reason of the negligence of the defendants. In their answer the defendants admit that plaintiff has been injured but deny that such injuries were caused by the negligence of the defendants and allege that the plaintiff was guilty of contributory negligence and that such negligence was the proximate cause of her injuries.

The case was tried to a jury. At the close of plaintiff's case and again at the close of the entire case defendants moved for a directed verdict on the grounds that the evidence failed to establish negligence on the part of the defendants and that the evidence established that plaintiff's injuries were caused by her own negligence. Both motions were denied and the case submitted to the jury. The jury returned a verdict in favor of the plaintiff for $8,500. Judgment was entered pursuant to the verdict and the defendants have appealed. They assign error upon the denial of the motions for a directed verdict, and upon the action of the court in refusing to give certain instructions. They contend that the evidence is insufficient to sustain the verdict, that the verdict is against the law; that the evidence does not establish that the defendants were guilty of any negligence proximately causing the accident; that the evidence conclusively shows that plaintiff was guilty of negligence which proximately caused the accident, and that the plaintiff as a matter of law assumed the risk of the accident and is barred from any recovery.

The material facts as shown by the evidence are substantially as follows:

The defendants are the owners of an apartment building in the City of Fargo known as the Ansonia Building. The defendants purchased this building and entered into possession thereof about November 1, 1946. The plaintiff was then a tenant of the former owners and occupied an apartment in the building and had been occupying the same for some two years. She continued to occupy such apartment as a tenant of the defendants after their purchase of the building. The apartment occupied by the plaintiff was the only apartment in the basement although another basement apartment was under construction at the time the accident occurred.

There was a passage-way or corridor running east and west the entire length of the basement, — a distance of some 75 feet. This passage-way was some five or six feet in width. The apartment occupied by the plaintiff was on the south side of the passage-way and toward the west end of the building. A lavatory assigned for the use of the plaintiff was entered from such passage-way and there had been constructed a number of cupboards or lockers that also opened on the passage-way. The passage-way was for the common use of all tenants and occupants of the building. The plaintiff and the other tenants had no duty with respect to the maintenance, care, and lighting thereof. It was the duty of the defendants to maintain and to light it. The entrance to the apartment occupied by the plaintiff was upon such passage-way. Under the rental agreement between the plaintiff and the defendants, plaintiff was given the exclusive use of a locker or cupboard in the passage-way. The locker or cupboard opened on the passage-way and was located about 20 feet east of the entrance to the apartment occupied by the plaintiff. Immediately west of plaintiff's apartment was a "wash room", — a room available to the tenants for laundry purposes. Some distance east of plaintiff's apartment was a "large drying room", — a room utilized by the tenants in which to dry clothes that had been laundered. "To get to the drying room from the wash room you went down the passage-way east from the wash room." The locker or cupboard used by the plaintiff was divided into two parts or compartments. There were two separate doors, attached by hinges at each side, which met and fastened in the center. The plaintiff used one of these compartments for storing various articles and she utilized the other compartment in which to store food, especially canned fruits.

The floor in the passage-way was of concrete, in its natural color. There was no covering of any sort on the floor. Two of the defendants and their families occupied apartments in the building. Shortly before the plaintiff was injured the defendants had begun to construct an additional apartment in the basement, — utilizing a part of the drying room for that purpose. They were doing much of the construction work themselves. They had on hand and had stored in the drying room a considerable quantity of material to be used for the construction. They had ordered a number of sheets of sheet rock or plaster board which were delivered some days before the accident occurred. These boards are constructed with a plaster composition in the center coated on each side with layers of heavy paper. The boards were 4 feet by 8 feet and were packed two boards to a package. The ends of the packages were wrapped in brown colored paper. Each board weighed a little over 50 lbs. so each of the packages weighed a little over 100 lbs. There were in all some five or six packages of these boards. When these boards were delivered the men who delivered them placed them in the passage-way on the opposite side from the apartment occupied by the plaintiff and some distance from the entrance to the apartment. In order to uncover the sewer pipe under the floor of the basement to make sewer connections for the new apartment the defendants found it necessary to move the boards from where they had been placed. One of the defendants testified that the boards were moved on the day the accident occurred. The boards were moved by two of the defendants personally and placed directly in front of and leaning against the cupboard in which the plaintiff kept the canned fruit. In moving them each of the two defendants took a hold of one end of the package containing two boards and carried it across to the opposite side of the passage-way, and there they placed the boards leaning against the cupboard in which plaintiff kept her canned fruit. The defendants admitted that the boards could have been placed elsewhere in the basement. One of the defendants stated as a reason for not placing them in the drying room that the defendants had a lot of lumber in there and the boards were not placed there so that if people came down to wash "they wouldn't hurt the boards." The boards were placed so that the edge that was 8 feet long rested on the floor. The evidence is not definite or clear as to the particular angle at which they were placed. Plaintiff testified that they stood almost perpendicular. Two of the defendants had little or no idea as to the angle at which they were placed and the third defendant testified that they were placed so that at the bottom the boards were a distance of about 5 inches from the wall.

The passage-way was ordinarily lighted with an electric light equipped with a 40-watt bulb suspended from the ceiling by a drop cord. There were three other electric lights farther down the passage-way which were operated by a switch. The lights nearest the cupboard were used in connection with the drying room. The cupboard was locked with a padlock. Plaintiff testified that between 5:30 and 6 o'clock in the evening of March 11, 1947, she decided to go to the cupboard and get a jar of canned fruit for dessert. She carried the key for the padlock on the cupboard in her hand. She stated that the hall was dimly lit and that she "hardly believed" that any of the lights in the hall were on. She testified that when she came to the cupboard and saw the boards leaning against it, judging from their appearance she thought they were light fiber boards or plywood and that she could move them away from the cupboard sufficiently far so that she could open the door and put her hand in and take out the jar of canned fruit which she intended to get. She placed the key in the lock so that it would be out of the way and then grasped the boards firmly with both hands. She stated that they moved easily and she proceeded to try to move them back. She stated that the boards became unwieldy and slipped and while retaining her hold on them she endeavored to get around the end, but the weight became too great and the boards fell over and crushed her to the floor breaking bones in both legs and otherwise seriously injuring her. As a result of her injuries she was confined to the hospital for almost four months. There is no dispute as to the serious nature of her injuries nor is there any claim that the damages allowed are excessive. The only questions presented with respect to the evidence or the facts concerns the questions of negligence and contributory negligence.

It is well settled that where the owner of premises leases parts thereof to different tenants and either expressly or impliedly reserves certain parts thereof, such as entrances, halls, or stairways for the common use of different tenants, "it is his duty to exercise reasonable care to keep safe such parts of which he so reserves control, and if he is negligent in this regard, and a personal injury results by reason thereof to a tenant or to a person there in the right of the tenant, he is liable, provided the injury occurs while such part of the premises is being used in the manner intended." 32 Am Jur, Landlord and Tenant § 688, pp 561-563, § 302, p 577; 52 CJS 38, et seq.; 2 Restatement, Torts, § 360, p 976, et seq.

The passage-way in which the accident occurred was under the control of the defendants and it was their duty to maintain it. The passage-way was for the common use of the tenants and occupants of the building. Under the rental agreement, however, the plaintiff had occasion to use the passage-way for purposes which were not common to the other tenants. She alone was entitled to the use of the cupboard and there was also assigned to her for her individual use a lavatory which was entered from the passage-way. The cupboard and lavatory were actually part of the premises for which the plaintiff paid rent. She had a right to use the cupboard and to have access thereto without hindrance. The defendants for their own convenience, for their own benefit, and in disregard of the rights of the plaintiff placed the plaster boards against the cupboard so as to interfere with and in fact bar entrance to the cupboard unless and until the boards were removed to such extent as to permit the doors of the cupboard to be opened. The action of the defendants in placing the boards against the doors of the cupboard was not occasioned by any emergency. They admitted that they had other places in the basement, available and accessible, where the boards could have been placed.

The plaintiff was a woman 66 years of age. Apparently she was living alone in the apartment which she occupied. She had occupied this apartment for a considerable period of time as a tenant of the former owners. She continued to occupy it after the defendants became the owners. She was known to the defendants. Two of the defendants occupied apartments in the building and the third defendant took an active part in matters relating to the maintenance of the apartment and was actively engaged in constructing the new apartment and familiar with the premises. He was one of the parties who moved the boards and placed them in front of the cupboard door. At the time of the accident the plaintiff used the passage-way and the cupboard for the purposes for which they were intended and for which she had an unquestioned right to use them. When she came to the cupboard for the purpose of getting a jar of canned fruit and found the boards in front of the cupboard there was no warning or anything to indicate that the boards were of such character, or that they had been so placed, that there was any danger likely to result from an attempt to move them. She did not know the nature or character of the boards other than what might be ascertained from their appearance, and judging by such appearance she assumed that they were light fiber boards. It is argued that she should have lifted the boards and that the failure to do so constituted negligence contributing to her injury. We do not agree. She could hardly assume that the defendants had intended to bar her from entrance to the cupboard or that they had left boards there of a type which would be dangerous for her to attempt to move or which she would be unable to move sufficiently to enable her to open the cupboard doors without obtaining the assistance of others. The defendants, however, did know the character and construction of the boards and they knew the manner in which the boards were placed and the condition of the floor on which they rested and according to the testimony of one of the defendants the character and the construction of and the material in the boards made it necessary that two persons handle each package because if the boards were dropped or not handled carefully they were likely to crack or break, and this apparently is the reason or at least one of the reasons why the defendants did not put the boards in the drying room. There is no evidence as to what wall boards constructed wholly of fiber, of the type which plaintiff judging by the appearance assumed the boards to be, would weigh, but it is not denied that such boards would be much lighter than the plaster boards or sheet rock which the defendants placed in front of the cupboard.

Ordinarily negligence, proximate cause, and contributory negligence are questions of fact for the jury. They become questions of law only when the evidence is such that ordinarily intelligent, reasonable, and fair-minded men in the exercise of reason and judgment can reasonably draw only one conclusion; but if the evidence is such that ordinarily intelligent, reasonable, and fairminded men in the exercise of reason and judgment may reasonably draw different conclusions from the evidence and circumstances as to the facts or the deductions to be drawn from the facts, then they are questions of fact for the jury. McGregor v. Great Northern R. Co. 31 N.D. 471, 154 N.W. 261, Ann Cas 1917E 141; Dougherty v. Davis, 48 N.D. 883, 187 N.W. 616; Newton v. Gretter, 60 N.D. 635, 236 N.W. 254; Logan v. Schjeldahl, 66 N.D. 152,262 N.W. 463; Leonard v. North Dakota Co-op. Wool Marketing Asso.72 N.D. 310, 6 N.W.2d 576; Maloney v. Grand Forks, 73 N.D. 445,15 N.W.2d 769.

We are agreed that under the evidence in this case it cannot be said that ordinarily intelligent, reasonable, and fairminded men could reach only the conclusions that the action of the defendants in placing the boards where they did at the time and in the circumstances which they did place them did not constitute negligence, or that such men after considering and weighing the evidence could only reach the conclusion that such negligence did not constitute the proximate cause of the injuries sustained by the plaintiff. We are also agreed that it can not be said that such men in considering and weighing the evidence could reach only the conclusions that the plaintiff had assumed the risk, or that her action viewed in the light of the circumstances constituted contributory negligence. On the contrary we are of the mind that as to these questions reasonable men in the exercise of reason and judgment might, and probably would, reach different conclusions and that consequently such questions were properly for the jury to determine.

Defendants have cited the decision of this court in Torgerson v. Minneapolis, St. Paul Sault Ste. Marie R. Co. infra, in support of their contention that there is no evidence showing actual negligence on the part of the defendants and that the evidence establishes as a matter of law that the plaintiff assumed the risk and that her injuries were caused by her own negligence. The facts in the Torgerson case were quite different from the facts and circumstances in this case. The Torgerson Case came before this court on an appeal from an order sustaining a demurrer to the complaint. Naturally, the question of contributory negligence was not involved. The Torgerson case involved a situation where the plaintiff was an employee who had been employed by the defendant railway company for more than three years. He was directed by the foreman of the crew to unload a box car containing grain doors. The doors were in three piles, — one in the center of the car and one at each side of the center pile. He first removed the center pile and thereafter doors from the other piles fell upon and injured him. The grounds of negligence alleged by the plaintiff in that case was the failure of the defendant to provide a reasonably safe place in which to work and the failure of the defendant to warn the plaintiff of the danger to which he would be subjected while performing his work. After the case had been remanded to the district court the complaint was amended and the case was again brought before this court on appeal from an order overruling a general demurrer to the amended complaint and this court held that the amended complaint did state a cause of action. Torgerson v. Minneapolis, St. Paul Sault Ste. Marie R. Co. 51 N.D. 745,200 N.W. 1013.

Defendants assign error upon the refusal of the court to give the following instruction to the jury:

"You are instructed that under the evidence in this lawsuit Mrs. McCullagh had the same opportunity to observe the conditions with respect to the piling of the plaster boards as did the Fortunes. She was bound to use all of her faculties to avoid danger to her. If she did not do so, she was guilty of contributory negligence and cannot recover."

There was no error in refusing to give this instruction. The plaintiff did not have the same opportunity to observe and to know the conditions with respect to the piling of the plaster boards as did the defendants. The defendants knew the character of the boards. They placed the boards and knew how they were placed. The matter referred to in the latter part of the requested instruction that the plaintiff was required to use all her faculties to avoid danger were fully covered by other instructions stating rules at least as favorable to the defendants as they were entitled to have stated. The trial court instructed the jury as follows:

"If you find from the evidence that Mrs. McCullagh voluntarily placed herself in a position which she knew or with reasonable care should have known was dangerous, she cannot recover. A person is conclusively presumed to be aware of a danger which she would have known if she had made ordinary use of her own senses.

"If you find from the evidence that Mrs. McCullagh had the means of knowing that the boards were dangerous if they were pulled out from the wall, then you are instructed that under the law she had no right to run the chance of injury to herself by trying to get the jar of fruit, and your verdict in that event must be for the defendants. . . .

"The court instructs the jury that one who voluntarily places herself in a position of danger, knowing the situation as it exists, and knowing at the time how she might avoid the danger to herself if she used ordinary care for her own protection, is assumed in law to have assumed the risk of the situation which she voluntarily goes into. Then she cannot recover."

The defendants also predicate error upon the refusal of the court to give the following instruction:

"Mrs. McCullagh complains that the way the plaster boards were left by the defendants constituted a trap and a nuisance. You are instructed that ``trap' and ``nuisance' are legal terms, and that under the evidence as it developed in this lawsuit, there was no trap and there was no nuisance."

This requested instruction is predicated upon a statement in the complaint that the sheet rock where it was placed and the manner in which it had been placed against plaintiff's storage locker constituted a trap and a nuisance negligently caused by the defendants.

The trial court did not err in refusing to give the instruction. The record does not show that the complaint or any part thereof was read to the jury by counsel in the opening statement, or that any reference was made to the particular statement in the complaint during the introduction of evidence or the arguments to the jury. The words "trap" and "nuisance" are not necessarily legal terms. Both words have a popular meaning. Indeed it is at least doubtful whether the word "trap" can be said to have a technical meaning as a legal term distinct from its popular meaning. When a word which has both a technical and a popular meaning is used in a statute, the court, in construing the statute, "will accord to it its popular signification, unless the very nature of the subject indicates, or the context suggests, that it is used in its technical sense." 2 Lewis' Sutherland, Stat. Const. 2d ed p. 752.

We think that in this case the words "trap" and "nuisance" were employed by the pleader and intended to be understood in their popular sense. To have instructed the jury that these words had a distinct technical meaning as distinguished from their popular meaning would have been rather misleading unless the court further had informed the jury of their technical meaning. The requested instruction did not purport to give any such meaning. In any event it is inconceivable that these particular words could have had any controlling effect upon the jury in determining the questions of negligence, contributory negligence, and assumption of risk, all of which were submitted to the jury under instructions which were eminently fair to the defendants. It follows from what has been said that the judgment appealed from must be affirmed. It is so ordered.

NUESSLE, Ch. J., and MORRIS and BURKE, JJ., and GRONNA, District J., concur.

BURR, J., did not participate.

(On Petition for Rehearing)