Rietzel v. Cary

• Citation: 19 A.2d 760
• Decision Date: 01 May 1941
• Docket Number: Nos. 8279, 8280.,s. 8279, 8280.
• Parties: RIETZEL v. CARY (two cases).
• Court: United States State Supreme Court of Rhode Island

19 A.2d 760

RIETZEL

v. CARY (two cases).

Nos. 8279, 8280.

Supreme Court of Rhode Island.

May 1, 1941.

Exceptions from Superior Court, Providence and Bristol Counties; Alexander L. Churchill, Judge.

Actions of trespass on the case for negligence by Alice M. Rietzel and by Charles W. Rietzel, her husband, against Edwin F. Cary. On defendant's exceptions to a decision for plaintiff in each case.

Exceptions sustained.

John M. Dunn, of Providence, for plaintiffs.

Henry M. Boss, of Providence, for defendant.

CONDON, Justice.

These actions of trespass on the case for negligence were tried together before a justice of the superior court sitting without a jury and resulted in a decision for the plaintiff in each case. The defendant duly excepted to such decision and the cases are now in this court on these exceptions.

The causes of action arose out of an accident which happened to plaintiff Alice M. Rietzel, wife of plaintiff Charles W. Rietzel, while she was walking down an unlighted stairway in defendant's apartment house in the city of Providence. Each brought an action against the defendant, but since the husband's action is dependent upon that of his wife, we shall hereinafter refer only to the wife's action.

Plaintiff's declaration consists of only two counts. The first count alleges that defendant's stairway was so peculiarly constructed that it constituted a danger amounting to a nuisance. The second count also alleges peculiar construction of the stairway and, in addition, a lack of natural light necessitating the provision of artificial light to make the stairway safe for persons using the same; and it further alleges that the defendant was under a duty to plaintiff to provide such artificial light, and that he neglected to do so, by reason of which negligence on his part she, plaintiff, was injured. The nuisance count was not sustained, but the trial justice found for the plaintiff on the negligence count.

The facts are undisputed. Sometime after 12:30 o'clock in the early morning of November 25, 1937, plaintiff fell down an unlighted, winding stairway in defendant's apartment house and was seriously injured. She had entered the apartment house about 9:30 o'clock the night before and walked up the same stairway to the third floor, where a friend, on whom she was calling, occupied an apartment as a tenant of the defendant. The stairway was lighted at that time in accordance with an arrangement or understanding between the defendant and his tenants that he would provide artificial light in the hallways and stairways of the apartment house until 12:30 a. m., at which time such light would be automatically switched off.

The evidence shows that, at the place where plaintiff fell, going down the stairs, they wind so that from the first "straight tread" to the next "straight tread" at the end of the wind there is a drop of thirty-four inches on the side of the stairway where the stairs wind around the post. There is no room for a foothold on the parts of the winding stairs next to the post. Two experts testified as to whether such type of stairway was common and usual and whether or not such stair construction was safe. One expert was produced by the plaintiff and the other by the defendant. Both testified that such construction was common. Moreover, plaintiff's expert testified that the particular arrangement of the stairs in question here was also a common arrangement in winder stairways.

"Q. And although winder construction is common, is the particular arrangement which you have observed up there common? A. As to winder construction?

"Q. Yes. A. Yes, yes."

He testified further that the use of winders is good architectural practice, but added: "I think most architects try to get away from winding construction in stair construction, and building their stairways very similar to the stairway that is in that stairway well leading from the second to the third floor that has no winders in it, although the ceiling heights are the same." In other words, his opinion was that winding construction was proper but not the best construction.

"Q. The stairway on the other floor is what you call proper construction? A. Better construction than first to second."

This witness was allowed to give his opinion of the safety of the particular winding stairs in question here. His testimony on this point is consistent with his prior testimony as to the propriety of winding stair construction, although the trial justice seems to rely upon it to support his finding that these stairs were inherently not safe. In our opinion this testimony goes no farther than to state the existence of a danger if the stairway under certain conditions was unlighted.

"Q. Having in mind what you testified to concerning this stairway and these handrails, is it your opinion—what is your opinion concerning the condition of that stair well relative to safety without lights? A. I would consider it quite unsafe.

"Q. Would you say that presents a hazard to an ordinary person? A. At night?

"Q. At night. A. Yes, I would.

"Q. And what is the hazard that it presents? A. Well, the hazard is principally the lack of lights * * *."

Defendant's expert testified positively that the type of winding stairs here in question was common and that he had seen them in many old and new buildings in Providence, some of which he named. Fundamentally, all of the evidence as to whether winding stairs were common, usual and proper construction was to the same effect, namely, that the stairs in question were not uncommon or unusual but were of the ordinary and usual type of winding construction and recognized as proper construction.

On this evidence, therefore, and assuming the plaintiff was not negligent, the only question was whether or not the defendant was guilty of negligence in not lighting the stairway after 12:30 a. m. In answering this question we must first of all consider what duty, if any, the defendant was under, as the owner of the apartment house, to provide artificial light for common passageways therein which were under his control.

A landlord who merely retains general control of common passageways is not thereby under any duty to a stranger rightfully upon the premises to see that such passageways are artificially lighted, if they are otherwise inherently safe and convenient. Capen v. Hall, 21 R.I. 364, 43 A. 847. This rule of law has not been changed by statute since that case was decided, and it was recently recognized and followed by us in White v. Heffernan, 60 R.I. 363, 198 A. 566. It therefore governs the instant case.

However, the plaintiff contends that her case falls within an exception to the general rule as indicated by certain language in the opinion of the court in the Capen case [21 R.I. 364, 43 A. 848], supra. There, this court said: "In cases of special danger from unusual...