Brubaker v. Glenrock Lodge Intern. Order of Odd Fellows, 4280

• Citation: 526 P.2d 52
• Decision Date: 06 September 1974
• Docket Number: No. 4280,4280
• Parties: Katherine BRUBAKER, Appellant (Plaintiff below), v. GLENROCK LODGE INTERNATIONAL ORDER OF ODD FELLOWS, Appellee (Defendant and Third-Party Plaintiff below), v. William LYTHGOE, dba Lythgoe Construction, Appellee (Third-Party Defendant below).
• Court: United States State Supreme Court of Wyoming

Page 52

526 P.2d 52

Katherine BRUBAKER, Appellant (Plaintiff below), v. GLENROCK LODGE INTERNATIONAL ORDER OF ODD FELLOWS, Appellee (Defendant and Third-Party Plaintiff below), v. William LYTHGOE, dba Lythgoe Construction, Appellee (Third-Party Defendant below).

No. 4280.

Supreme Court of Wyoming.

Sept. 6, 1974.

Edward E. Murane and G. G. Greenlee of Murane, Bostwick, McDaniel, Scott & Greenlee, Casper, for appellant.

J. E. Vlastos of Cardine, Vlastos & Reeves, Casper, for appellee Glenrock Lodge International Order of Odd Fellows.

Donald R. Winship of Everett, Everett, Winship & Kastanek, Casper, for appellee Lythgoe.

Before PARKER, C. J., and McEWAN, GUTHRIE, McINTYRE, and McCLINTOCK, JJ.

Mr. Justice GUTHRIE delivered the opinion of the court.

This is an appeal by plaintiff, appellant herein, from an adverse judgment based upon the jury's verdict in a suit against the Glenrock Lodge of the International Order of Odd Fellows, defendant and third-party plaintiff below, and William Lythgoe, dba Lythgoe Construction Company, third-party defendant, appellees here.

Plaintiff filed her complaint against the lodge, as defendant and owner of the premises which she had leased, for injuries suffered on October 17, 1968. The lodge brought Lythgoe into the suit by virtue of a third-party complaint, alleging that if there were any recoverable negligence it should be indemnified by Lythgoe for the loss, and plaintiff afterwards filed an amended complaint joining Lythgoe as a defendant.

The issues and claims of the parties were defined by the trial court by virtue of certain pretrial memorandums made a part of the pretrial order. Stated most summarily they are as follows:

Plaintiff claimed that Lythgoe as an employee of the lodge negligently moved and installed a stairway which collapsed causing plaintiff's injuries; that the lodge negligently permitted the stairs to come loose and fall; that the lodge was negligent in failing to inspect these stairs and to discover their condition and to keep them in reasonable repair; and that defendants' negligence was the proximate cause of her injuries.

The defendant lodge answered with a general denial and asserted the defenses of assumption of risk, contributory negligence, and unavoidable accident, and asserted alternatively that if there was any actionable negligence it was not that of the The factual situation from which this cause arises is briefly as follows:

lodge. Lythgoe adopted the statement of issues and defenses as set out by the lodge.

The lodge, which owned the building in Glenrock, leased the basement of the building to plaintiff for the operation of a store. Prior to the execution of the lease, but in conformity with verbal negotiations and agreements, the lodge made certain repairs and did some remodeling to make the premises suitable for plaintiff's use. Among the changes made was the rearrangement of the stairway which led from the first floor into the basement from the west end of the stairwell to the east end, which was specifically requested by the plaintiff. This was done by Lythgoe on March 17, 1968. A written lease was executed by the parties on June 1 and the plaintiff moved into the premises on or about July 1, 1968. She continued the use of these premises under her lease and on October 17, 1968, while she and Mrs. Hendricks, an employee, were engaged in moving merchandise to and from the basement, the stairs collapsed and plaintiff suffered grievous injuries. Plaintiff, who had just been to the basement, met Mrs. Hendricks upon the stairs and just about the time she reached the top Mrs. Hendricks said something about the stairs 'feeling funny.' Plaintiff turned to go down these stairs to see what was the matter and immediately upon her stepping upon the top step the stairs collapsed, precipitating her into the basement. The factual details of the moving of the stairway and the details of the remodeling which was accomplished will be mentioned hereafter where they are material in the disposal of some of the issues in this appeal.

Appellant herein raises five contentions of error in her appeal-the first being prejudicial error of the court during trial, which covers the exclusion of certain expert testimony. The remaining four errors alleged have to do with instructions and will be discussed under that heading.

EXCLUSION OF TESTIMONY

The first error asserted by appellant is in connection with the refusal of the trial court to allow an expert to answer a hypothetical question to which the judge sustained an objection on the basis that the hypothetical question assumed a fact not in evidence. This being based solely upon the factual situation appearing in the record without any question of law being involved, a disposal of this would be of no value because this question will undoubtedly not reoccur.

INSTRUCTIONS

Appellant asserts error in giving Instruction 5 which submitted the question of plaintiff's contributory negligence to the jury on the basis there was not sufficient evidence to permit the jury to consider this question.

The facts concerning the use of the stairs and the claimed warning are earlier set out. Mrs. Hendricks was unable to define what she meant by her statement that the stairs 'felt funny.' She did not believe Mrs. Brubaker responded, although she might have. Plaintiff said she understood Mrs. Hendricks to say there was something wrong with the stairs and that she would construe it as some type of warning, although she felt nothing and wanted to see what was wrong when she started down again. Immediately upon her stepping upon the top stair the stairs fell.

We have heretofore held in the case of Gish v. Colson, Wyo., 475 P.2d 717, 718, that it is prejudicial error to give an instruction on contributory negligence if this is not supported by substantial evidence. Thus, we are directly faced with a determination of whether this evidence will sustain an instruction on contributory negligence. It has been held in Murphy v. Petrolane-Wyoming Gas Service, Wyo., 468 P.2d 969, 976, as follows:

'* * * Apparently the court assumed that if one is advised of a problem not routine nor transient he is thereby informed of danger. We think such assumption is unwarranted and erroneous. A plaintiff who exposes himself in disregard of warnings when an ordinarily prudent man similarly situated would not is guilty of negligence but such a warning must be definite in order to be properly considered as informing him of the danger, and when the facts are undisputed the contributory negligence becomes a matter of law.'

In the earlier case of Loney v. Laramie Auto Co., 36 Wyo. 339, 255 P. 350, 354, 53 A.L.R. 73, we recognized the necessity that the one charged with contributory negligence must appreciate the danger even if advised of some defects. This evidence reveals no definite warning-Mrs. Hendricks only stated the steps 'felt funny.' She did not say they were faulty nor that they had wabbled or swerved. This warning was of such indefinite character that it cannot be used as the basis for a claim of contributory negligence. The plaintiff started down only to see what was wrong and not in anticipation of any danger. A statement appearing in Post v. American Cleaning Equipment Corporation, Ky., 437 S.W.2d 516, 520, clarifies our view:

'* * * We think the gauge for testing appellant's contributory negligence must be read in the light of the sufficiency of the warning to apprise him of the severity, gravity, and extent of the danger. * * *'

The lodge relies upon this testimony and additionally upon Rookstool's testimony, the expert who testified that in event the stairs loosened by raising the bottom of the steps this would be evidenced by a showing of physical damage starting long before the nails came out; that a gap would appear between the horses and header; and the steps would slant forward in a noticeable manner. This expert opinion is in the face of unimpeached and positive testimony that there had been no noticeable defect in the stairs on the part of the plaintiff or Mrs. Hendricks. Plaintiff cannot be charged with negligence for a condition which was not present or if not alerted by a proper warning, Rookstool's testimony of a noticeable slant may have been a recognition of what the witness described as 'feeling funny,' which we have already held would not constitute substantial evidence. We do not deem this to be a conflict in the evidence under the peculiar factual situation in this case. It has been held that mathematical computation of an expert should not be allowed to impeach an eyewitness, Hicks v. Gillespie, 346 Mich. 593, 78 N.W.2d 145, 149. It has been recognized that opinion testimony of experts cannot prevail against direct factual testimony as evidenced by the statement appearing in In re Kadilak's Estate, 405 Pa. 238, 174 A.2d 870, 873:

'Moreover, opinion evidence of an expert, whether he be a doctor or any other kind of expert, is, in cases of forgery, undue influence, mental capacity and insanity, of very little weight and cannot prevail against direct factual credible evidence. (Citations.)'

In that case it was held that the conflicting testimony of the expert did not raise a substantial or material issue of fact. See Atchison, Topeka & Santa Fe Ry. Co. v. Hamilton Bros., 8 Cir., 192 F.2d 817, 822; Hollis v. Industrial Commission, 94 Ariz. 113, 382 P.2d 226, 228. There is a statement which the writer believes applicable herein appearing in Tolle v. Higgins Industries, 212 La. 173, 31 So.2d 730, 733, where in discussing the question of whether direct testimony could be overcome by an expert's conclusions the court said:

'* * * Theoretical possibilities cannot outweigh direct testimony because of their uncertainty. * * *'

It is our opinion that the so-called warning and expert opinion are not substantial evidence as would have raised the question of plaintiff's contributory negligence and therefore resulted in...