Spears v. Goldberg , 122 W. Va. 514 ( 1940 )

The question that arises upon reviewing the record in this action is whether the entrance to the defendant's store, which, as stated in the majority opinion, has a terrazzo incline rising seven inches in a distance of eight feet seven inches from the line of the sidewalk to the door, can be called a nuisance, public, private, or mixed, for the maintenance of which the tenant and the landlord are legally responsible. The recovery sought is not predicated upon negligence, but upon the maintenance of an entrance way of known and inherent danger such as to render the landlord liable together with a tenant in possession and in full control.

I believe that, for the purpose of discussion, it may be conceded that the terrazzo incline was dangerously slippery when wet, but that concession alone would not make the entrance constitute a nuisance of any sort. It is generally recognized that there are very few surfaces which are not decidedly more dangerous to walk upon when wet than when dry. It is also recognized that there are many ways that a wet surface can be treated or covered at a negligible cost, so that the added danger is eliminated. This common knowledge, to my mind, does away entirely with the inherent danger that this entrance must have in order to carry this action to the jury upon the theory that a recovery for the maintenance of a nuisance would be justified. In such an action the recovery is for the harm done by the existence of a condition generally recognized to be hazardous or obnoxious, or of a like condition peculiar to, but plainly recognizable in, its surroundings.

Negligence, although it may in a particular case be a feature, is not an essential element of a right of action for the maintenance of a nuisance, either per se or in fact. It may be that here a recovery on the basis of negligence on the part of the tenant in not exercising due care to provide a reasonably safe entrance in wet weather for invitees who were its prospective customers would be justified if pleaded. See Annotation in 100 A.L.R. 710, at page 753, and previous Annotations cited. But that is not the question now before us, and I do not believe that under the state of facts disclosed by this record a recovery against the landlord could be maintained upon either theory.

Since the recovery sought is not predicated upon the negligence of the defendant, I cannot agree that contributory negligence, as distinguished from the primary negligence of the plaintiff, is a question to be submitted to a jury. SeeBaker v. Wheeling, 117 W. Va. 362, 185 S.E. 842, Pt. 4, Syl. To my mind, this clear statement of the rule controls over what was said in the case of Higginbotham v. Kearse, 111 W. Va. 264,161 S.E. 37, 77 A.L.R. 1110.

For the foregoing reasons, I believe that there is no apparent error in the trial court's order directing a verdict in favor of the defendant-tenant and the defendant-landlord. The plaintiff, having exercised her election and having been content to pursue her choice, I feel, has no just reason for complaining.